A lot depends upon your status with Co-op. Have they said they won't pursue or said they won't issue defaults?

I have 3 small debts like that (no agreement) and whilst there are no defaults on my credit file from any of them, they are all marked simply 'no information'.

I'm really not sure about these firms who claim to write off the debt, not sure how that works, or even if it is true.

Basically with no agreement there is no way a creditor can defend much less sue you. Defaults are trickier, they may not issue them but there is a way word gets around you are a bad risk!!

A solicitors fees would most definitely be recoverable, but like anyone else they are in it to make money (generally lots of it!). The two firms I have spoken to both talked about a 1/3 of any monies 'written off' (which I would assume would be 1/3 the outstanding debt). I asked how would I find that sort of money since I am broke. The answer was that in the majority of cases this comes from damages off the creditor somehow (but I'm not sure how). Turns out this cannot be guaranteed, at which point I backed off - I don't want to owe a solicitor thousands!!!

If you can find a solicitor that can guarantee all fees recoverable with a no win no fee promise I'd go for it!

Basa

Thanks for the reply.

The advice you offer is as always very sound. One thing though, take my card with Co-operative, they admit they don't have an agreement (can't find it, lost it or whatever), assuming they don't miraculously find it, ultimately they have no defence against any action I were to bring. Even if I were to instruct solicitors their fees would be recoverable if (or when!!) I were to win. Surely it only gets murkier if they were to file a defence? But what defence?

Also is a claim through the Court about getting debt written off or more about getting an order declaring it as unenforceable? At the same time you get an order stopping the dirty tricks they get up to (like knackering your credit rating). I'm not bothered about 'owing' someone thousands they can't recover but I would be if they were issuing default notices, marking my credit file accordingly and hassling me for repayment of the 'debt'. It kind of seems that the stalemate situation you end up in means they can do what they want.

I suspect that more than 1 of my creditors won't have an original agreement so whats the risk of using a solicitor to take them to court? I understand that some, like the Cahoot one, would be subject to argument, and therefore risky, but any without an original executed agreement?

Cheers

Hi

My Cahoot debt is over £5,000.

Broooooce

I haven't taken the offensive for a couple of reasons.

The main one being that to initiate a claim means you have to clearly and comprehensively prove the agreement is defective and with the complexties of the law and court procedures this can be tricky, especially where a creditors specialist QC might tie a less knowledgeable judge in knots.

The second is cost. Check out the fees to bring a claim, make applications, allocations and (if you win) warrants. OK if you are on benefits or pension, but prohibitive for the cash strapped working person.

Finally if you defend a creditors action you know up front what the arguments are going to be and can prepare your defence much better.

Be prepared for a solicitor to not only charge fees but also look to claim a percentage of the amount 'written off'. My problem with this is they have to sue for a massive amount not just a zero balance or else you end up with a debt to the solicitor.

What is the current balance of your cahoot debt?

Jamie

Hi Basa

I totally get where you are coming from and I knew it would be uphill all the way - I just didn't expect them to be so bloody brazen. They effectively stick 2 fingers up at the law yet only have themselves (and great sites like this one!) to blame. From what I've read they seem to act in a spiteful and vindictive manner, I'm just not sure if I can stand months and months of being wound up by the feckers.

My head is telling me to take it to the point of getting the SAR information and then, provided it affirms my suspicions that no agreements exist, pass it to a solicitor to issue a letter of claim and go for an order confirming the debt is unenforceable. I would hope that using that route maybe I'd avoid some of the shitey tricks they pull. What do you think? If you don't mind me asking why haven't you gone down that route? These forums are excellent but I feel that to get closure somewhere along the line I will have to go on the offensive, because I'm sure my credit card companies won't. And doing it on your own (going to court that is) is just too risky.

I have been busily Googling trying to find a solicitor, but half the hits that sound like solicitors are actually claims management companies, the others that are solicitors most I've found aren't taking cases on. I've found one in Manchester that seems okay but the best way of chosing any tradesman is by recommendation. Does anyone have a recomendation they can give me? Maybe it goes against the grain of self help forums but I feel I really need to way up all options.

Thanks again. Andrew

As far as rights to cancel, this is not a required term but there are strict policies regarding its format. You should check schedule 2 of the Consumer Credit (Agreements) Regulations 1983. It is not something I would rely on to invalidate an agreement.

Lloyds as you say are in default and you can legally stop payments. After 79 days it is unlikely they will produce an agreement (but not impossible). The decision is up to you, but I would stop payments!

Barclays are fairly typical in this response. Again it is fairly certain they will not be able to produce a valid agreement (especially from 1992). Again I would stop payments.

Both Lloyds and Barclays will scream and squirm with threatening letters, but will struggle to back it up without valid agreements.

Be warned this will be a very long road - I have withheld payment to 3 creditors in light of invalid agreements and even 7 months down the line have no legal proceedings initiated against me. Just loads of letters and responses. It will also trash your credit rating - guaranteed and with little you can realistically do.

I don't know where this will all end up, but my confidence is boosted by the lack of legal action on their part and my increasing knowledge of the law, requirements and procedures.

It is natural to be nervous and the letters you will receive play on that nervousness, but in your position at the moment you have little to fear.

Something else. When is the right time to stop making payments to these feckers?

e.g. sent s78 request to Lloyds on 10.7.09, plus 3 follow up letters and a SAR on 2.9.09. Still nothing but a couiple of apologetic letters saying they hoped to respond within 28 days. Technically I can withhold payment but if they come up with an agreement I guess I'd then have to pay them. But if they don't have an enforceable agreement then I guess I'm wasting money. Initially I was thinking I'd pay them until such point as they replied but that was before I realised that they didn't give a s**t about this 12 days nonsense and made up there own rules. Its now 79 days!!

Barclaycard is a bit different. They have 'complied fully' (so they say) with my s 78 request by providing me with a copy of the T & C's from 1992 and a copy of the current ones. I've written back twice requesting a true copy of the agreement and submitted a sar - but to date nothing. Looking at other Barclaycard threads posted here it would seem this nonsense is standard Barclaycard tactics. Do I withold payment?

I'm a bit nervous about it all.

Ey up Basa!

Are you saying that the right to cancel should be included in the executed agreeement - like the prescribed terms? Is the right to cancel a prescribed term?

Cheers!

As I understand it the difference between 'contained' and 'embodied' is that 'contained' means it must be on the same piece of paper as the debtors signature (this may be the reverse side) or a piece of paper / page absolutely and provable part of the same document as the signature (it should be definitely linked by way of page numbering or similar). 'Embodied' means it must be part of a bundle of documents refered to from the signature document.

The differentiation is paramount when considering prescribed terms contained in an agreement.

The following is from Goode, Consumer Credit Law and Practice, paras 30.102-30.103.

“It is clear that s61(1)(a) is referring to the prospective regulated agreement, so that its requirements must be fulfilled by that document and not just by another document to which it refers”.

Huckster

You're a good man! Thanks for your help.

Just had the post since posting my thread and guess what I've got a letter form Cahoot which encloses a copy of the T & C from 2002 (when I took the loan out). It is also not possible to tell from the document provided when these T & C's are actually from. There is a reference of the letterhead of 'Apr 07' but I think that refers to the letterhead not what is printed on it. What is printed on it was done by a printer not a photocopier and clearly cannot be a true original copy of the T & C's referred to in the copy executed agreement.

2 other things are odd:

1. There is no right to cancel in the flexible loan conditions provided.

2. The agreement makes reference to a general condition 8 (Cahoots right to vary the interest rate and charges etc) but point 8 of the flexible loan conditions document Cahoot provided talks about early repayment.

Is it likely that Cahoot have 2 sets of T & C's? In their letter they quote 'enclosed is a copy of the flexible loan T & C's....from August 2002' and then further on in the letter they say 'The right to cancel the agreement is included in the general T & C's (point 4)...' They do seem to be talking about 2 different sets of T & C's. Very confusing.

Going back to whether the right to cancel should be in the agreement or not - are we getting into this argument about containing and embodying? This is really confusing - most of the agreements I've seen posted on different forums seem to have the right to cancel information emblazoned across the bottom of the agreement in a highly visible place - not tucked away in the T & C's.

Cheers!

Brooooooooooce:

From what you have said, I think Cahoot are correct that the t&c's can contain the 'right to cancel' part. But why they can't send you a copy or advise you where you can obtain this, I don't know.

If I were you I would just submit a complaint to the CEO of the company ( Abbey/Santander?) about the problems you have experienced. It is a simple matter. All you want is a copy of the original t&c's that applied to your account in 2002, so you can read this in relation to the CCA.

Also phoning you 10 times a day in contrary to the OFT collection guidelines e.g. harrassment. See http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf

I think the letter to the CEO by recorded delivery should help you. It might prompt them to get their finger out to find the 2002 t&c's and stop the level of harrassment.

Huckster

Hi. Just need a little help with Cahoot. To date they have sent me 4 copies of my executed agreement - each time I write to them they seem to ignore what I've asked for and simply send me another copy of the agreement! At least they have an agreement, only one other of my other creditors to date have been able to produce anything remotely resembling an agreement.

Anyway I did manage to get a 'proper' reply this week but it didn't answer my questions. I have 2 issues that I hope someone can help with:

1. The original executed agreement taken out in 2002 (the one I have 4 copies of!) makes reference to 'enclosed terms and conditions'. I have asked specifically for a copy of these on more than one occasion - the reply this week doesn't enclose them but instructs me to look on the Cahoot website as I can find them there. I assume what I want is a copy of the T & C from 2002? Is it possible they don't have the 2002 T & C? What are the consequences for them of not having the original T & C? Should I keep badgering them for a copy?

2. The original agreement definitely does not contain a 'right to cancel' notice. When I queried this with Cahoot they said it was contained in the T & C and I should look there for the information. Should the 'right to cancel' be contained in the agreement or will it be sufficient to have it in the T & C? If it should be in the agreement what bit of the CCA 1974 do I need to quote?

I'm getting the Cahoot debt collection department ringing 10 times a day and to date I haven't actually spoken to them but I'd quite like to get them off my back.

Hi. Just need a little help with Cahoot. To date they have sent me 4 copies of my executed agreement - each time I write to them they seem to ignore what I've asked for and simply send me another copy of the agreement! At least they have an agreement, only one other of my other creditors to date have been able to produce anything remotely resembling an agreement.

Anyway I did manage to get a 'proper' reply this week but it didn't answer my questions. I have 2 issues that I hope someone can help with:

1. The original executed agreement taken out in 2002 (the one I have 4 copies of!) makes reference to 'enclosed terms and conditions'. I have asked specifically for a copy of these on more than one occasion - the reply this week doesn't enclose them but instructs me to look on the Cahoot website as I can find them there. I assume what I want is a copy of the T & C from 2002? Is it possible they don't have the 2002 T & C? What are the consequences for them of not having the original T & C? Should I keep badgering them for a copy?

2. The original agreement definitely does not contain a 'right to cancel' notice. When I queried this with Cahoot they said it was contained in the T & C and I should look there for the information. Should the 'right to cancel' be contained in the agreement or will it be sufficient to have it in the T & C? If it should be in the agreement what bit of the CCA 1974 do I need to quote?

I'm getting the Cahoot debt collection department ringing 10 times a day and to date I haven't actually spoken to them but I'd quite like to get them off my back.

Thanks in advance for helping me out.