Brooooooooooce:

Basa

I last wrote to Co-op a month ago - as yet no reply. I've stopped payments and to date I've had one phone call from them chasing payment, but I explained the account was in dispute etc and I haven't (yet) had another call. So at the moment they haven't said anything. Surely in this case (a certain breach of S. 78) if the Co-op were to issue defaults, a complaint to the FOS, ICO, Banking Code and OFT would eventually remedy the situation? Given that the Co-op issuing a default / adverse info would be a clear breach of S. 78.

I wouldn't be too sure of this.

The arguement will be that regardless of the enforcibility of the agreement, the debt still exists and they have a duty to advise potential creditors of their experience. This circumstance is about to be tested in both the London commercial court. The cases being presented concern the addition of defaults after a declaration of rights in favour of the debtor. The legal arguement is that this constitutes enforcement and the declaration prevents this.

The first case was due last Monday but has not happened. This is not surprising as to pursue the case at this level would set a precedent that the OCs would regret.

Further cases are due to follow but expect these to be cancelled as the OCs run from the risk.

If the courts block the application of defaults, what do the OCs have?

Brooooooooooce: I spent quite a bit of time trying to find out who represented the chap Mitchell in the case with the Bank of Scotland (as this one seems to be quite a significant judgement) turns out it was a claims management company called Ratio Money, who's other claim to fame appears to be that one of their directors is an actor (Kevin Webster) from Coronation Street fame (no less!). So it does seem that there are firms out there having success - but there are obviously costs (although in this case the fees were reclaimed from HBOS). It seems to me that the problem with costs (for those acting on a no win no fee) is that if settlement is reached outside of court (by negogiation) you may well end being stung for a ton of legal fees.

If you want case law, go to www.bailii.org or google bailii (British and Irish Legal Information Institute). The search engine is pretty good.

Other people on this forum have good experience of Ration Money.

Solicitors take a policy to indemnify them against cost. Typically, the practice will demand the premium as an up front cost. This policy will cover the risks associated with the defendent folding prior to hearing.

Brooooooooooce: I also looked at a firm called Torston, who aren't solicitors but are a claims management company. Essentially what they said was they they would audit the agreements and if their barrister determined they were unenforceable then solicitors would be instructed and the case passed to them. The claims management company get a commission from the solicitor and the legal fees are met by either claiming back from the lender or an insurance policy paid for by the solicitor. The documentation I have states in bold letters, 'free of charge no obligation assessment' and 'no back end fees or deductions' and 'win or lose you don't have to pay anything'.

Ever heard of this firm? It does seem they guarantee there is no cost.

Cheers

No experience of them, sorry

S

Dammit !!

Stubie said just exactly what I was going to say (as usual) .. but I had to do some work in the meantime !!! :--)

Of course he said it much more eloquently !! *coughs*

Ey up Stubie / Basa

In my case with the Co-op they admit they have no agreement, so what would give them the right to process my data? Would they not need to provide to the ICO a document stating 'I Brooooooooooooooooooooooooooooooooooooce allow you to process my data'? S. 78 says they can't enforce the agreement while in default, surely that includes issuing default notices against me? Or are we talking about marking my credit file with lots of late payment / non payment markers so others can see?

When you say other people have good experience of Ratio Money do you mean they 'had' a good experience or they 'good' experience which could be good or bad!

If you don't mind me asking you Stubie where are you at in this whole thing? Have you managed to have anything written off? Have your creditors shafted your credit rating? Have any taken you to court? Have you taken any to court? Why haven't you used a solicitor or company like Ratio Money (assuming you haven't)?

Cheers.

Brooooooooooce:

Ey up Stubie / Basa

In my case with the Co-op they admit they have no agreement, so what would give them the right to process my data? Would they not need to provide to the ICO a document stating 'I Brooooooooooooooooooooooooooooooooooooce allow you to process my data'? S. 78 says they can't enforce the agreement while in default, surely that includes issuing default notices against me? Or are we talking about marking my credit file with lots of late payment / non payment markers so others can see?

When you say other people have good experience of Ratio Money do you mean they 'had' a good experience or they 'good' experience which could be good or bad!

If you don't mind me asking you Stubie where are you at in this whole thing? Have you managed to have anything written off? Have your creditors shafted your credit rating? Have any taken you to court? Have you taken any to court? Why haven't you used a solicitor or company like Ratio Money (assuming you haven't)?

Cheers.

You need to re-read Stubies first paragraph. The ICO do not care about CCA 1974 and unenforceability, they only care that if a relationship exists there is a fair processing agreement (even if only implicit).

Okey dokey.

Stubie are you saying that these test cases were to determine what constitutes enforcement as defined by S. 78? Cos presumably at the moment creditors refuse to accept that issuing defaults etc is enforcement. It seems then that living with defaults and a shafted credit rating is unavoidable.

Part of my 'problem' is the stigma of not being able to get credit, which in some ways is a bit of joke cos the last credit we got was 3 years ago and that was my wifes car (the loan is in her name). I can't remember the last time I took a new card or loan. I guess if you'd £250,000 in the bank and no real need for credit in the next 6 years in some ways you'd be less bothered.

Looking at the worst case scenario for example with the Co-op (assuming they aren't miraclously able to find an agreement), they can't enforce the debt in any way but equally there is nothing I can do to stop them shagging my credit rating. Given I own them £8,500 and have been paying over £200 per month, is this bit of a no brainer? Am I too hung up on keeping a good credit rating (which is partly responsible for the mess I'm in now i.e. I never had a problem getting more and more credit)?

Sorry to keep pestering you with posts, but this is so bloody complicated, I need to have a clear idea of what I'm doing and what *** I'm letting myself in for and whether it will be worth all the ***.

Cheers boys (or you could be girls!)

Brooooooooooce:

Ey up Stubie / Basa

In my case with the Co-op they admit they have no agreement, so what would give them the right to process my data? Would they not need to provide to the ICO a document stating 'I Brooooooooooooooooooooooooooooooooooooce allow you to process my data'? S. 78 says they can't enforce the agreement while in default, surely that includes issuing default notices against me? Or are we talking about marking my credit file with lots of late payment / non payment markers so others can see?

These things go two ways:

Typically, the creditor will send something (anything) and this is deemed compliance with s 78. At this point the default clears and the creditor proceeds as if nothing happened. Whilst this is clearly abuse, the enforcement authorities do not pursue.

As far as ICO are concerned, whilst the agreement may not exist/ be valid, there is evidence of use of the account. The debt exists and is due, although the court route is closed. It is important to remember that a declaration of unenforcibility does not write off the debt. ICO have stated that evidence of the debt (enforcible or not) is sufficient to allow processing - this has not been challenged, as far as I know.

It is also worth noting that the OCs have about as much regard for the law as they would to your personal circumstances. They know the regulators are toothless, so they are ignored.

Brooooooooooce: When you say other people have good experience of Ratio Money do you mean they 'had' a good experience or they 'good' experience which could be good or bad!

Others have received judgement in their favour through the actions of RM.

Brooooooooooce: If you don't mind me asking you Stubie where are you at in this whole thing? Have you managed to have anything written off? Have your creditors shafted your credit rating? Have any taken you to court? Have you taken any to court? Why haven't you used a solicitor or company like Ratio Money (assuming you haven't)?

Cheers.

At the moment I have several creditors offering settlements and appearing keen to not proceed to court. I haven't issued proceedings against any of my creditors and they have not issued against me.

I have no personal experience of CMCs and do not plan to use sols in the event that the negotiations fail.

S

Brooooooooooce:

Okey dokey.

Stubie are you saying that these test cases were to determine what constitutes enforcement as defined by S. 78? Cos presumably at the moment creditors refuse to accept that issuing defaults etc is enforcement. It seems then that living with defaults and a shafted credit rating is unavoidable.

The cases were referred from a Claim conference in Chester. HHJ Halbart referred these cases at the request of counsel representing debtors to establish the legality of applying defaults etc where a declaration of rights has been found in favour of the debtor. The debtor has subsequently been defaulted and is seeking injunctive relief from adverse credit markers. At the moment, the creditor can do as it sees fit, any determination in favour of the debtor would further reduce the creditors armoury where the debtor defaults.

Brooooooooooce: Part of my 'problem' is the stigma of not being able to get credit, which in some ways is a bit of joke cos the last credit we got was 3 years ago and that was my wifes car (the loan is in her name). I can't remember the last time I took a new card or loan. I guess if you'd £250,000 in the bank and no real need for credit in the next 6 years in some ways you'd be less bothered.

There are moves afoot to reduce the time limit to 3 years, in line with Europe. There is a petition on the Number 10 website calling for this. At present, only people with excellent credit references can get credit. The banks etc rely on credit to line their pockets so this will relieve in time. Injunctive relief is always an option. Credit is not the wonderful thing that many see it to be.

No access to credit could be a good thing. It would force people to manage their finances properly. Hopefully this will limit the extent of the next credit boom - as there will surely be one.

Brooooooooooce: Looking at the worst case scenario for example with the Co-op (assuming they aren't miraclously able to find an agreement), they can't enforce the debt in any way but equally there is nothing I can do to stop them shagging my credit rating. Given I own them £8,500 and have been paying over £200 per month, is this bit of a no brainer? Am I too hung up on keeping a good credit rating (which is partly responsible for the mess I'm in now i.e. I never had a problem getting more and more credit)?

See above

Don't get too hung up about credit ratings, unless you have immanent need of credit - moving house etc.

Brooooooooooce: Sorry to keep pestering you with posts, but this is so bloody complicated, I need to have a clear idea of what I'm doing and what *** I'm letting myself in for and whether it will be worth all the ***.

Cheers boys (or you could be girls!)

Personally, I find it excellent sport.

Its not for everyone.

The thing to do is be aware of your rights and read all letters PROPERLY!!!! Read what it says, not what the author wants you to read it saying. The difference is critical.

Never get drawn into phone calls, if you are with BT, look into their "choose to refuse" service. All communication in writing or not at all. Keep everything, even the envelopes and set up a filing system to keep then ready to hand.

If you receive a letter from the creditor, always reply even if this is just to re-assert your case. Never allow them the luxury of claiming that they have not been responded to.

Keep in touch with the site and we will guide/ support you through the darker times. A problem shared.... as they say.

I'm off to bed now (its nearly midnight, after all - Malasia time).

Nighty nighty!

Cheers for all the effort. My mind is clearer, I think its a case of tally ho into the breach and all that.

I know youve gone to bed but in the earlier post where you say you hope to have negogiated settlements with a few of your creditors, what is the main aim of negogiating a settlement? That might sound like a stupid question, because I assume first and foremost you are looking to get the bulk of your debt written off, but do you also include stuff like the clearing of your credit file etc? What's the problem with doing nothing, a stalemate, they can't enforce the debt, my credit file is shagged, but in 6 years won't it be all cleared up anyway?

Well it's approaching beer o'clock in my sunny home town (there's a line from a Bruce song!), but thanks again for your help it really is appreciated - everyone Stubie, Basa, Huckster and anybody else who knows me!

Cheers

Brooooooooooce:

..................what is the main aim of negotiating a settlement? That might sound like a stupid question, because I assume first and foremost you are looking to get the bulk of your debt written off, but do you also include stuff like the clearing of your credit file etc? What's the problem with doing nothing, a stalemate, they can't enforce the debt, my credit file is shagged, but in 6 years won't it be all cleared up anyway?

The aim is to get the whole debt written of at a cost of a very small percentage of the debt. What is known as a full and final settlement. It is well known creditors sell on debts at a fraction of their paper value ... say 10p in the £ or less.

Personally before I paid a F&F I would insist the file is marked 'satisfied'.

Ey up boys

Things are moving on. Had some replies to my SAR requests:

Barclaycard amazingly came up with an original application from 1992, but that's all it was not a single presrcibed term or even t & c's.

MBNA have confirmed that due to 'arhive retreaval issues at Alliance & Leicester' they don't have a copy of the agreement. At the same time A & L confirmed all records were passed to MBNA.

Coop still say they don't have an agreement but say '...it is of course reasonable that we demonstrate that you entered into a contractual CA and this can be demonstrated by sending you a copy of the CA. I am aware that a copy of the CA was sent to you at the time of opening. I enclose a blank CA...We do not consider the account to be in dispute.'

Halifax very reluctantly sent a copy of a 'pre approved application' again which contained nothing other than my details. No prescribed terms, signature of lender, t & c's.

I'm just getting a bit peeeeeeeeeeeeeeeeeeed off with the phone calls at the moment. Initially I would answer the call, go through the security blurb and then politely tell them the account is in dispute. Now I just refuse to go through it all and tell them the account is in dispute. I have wrtitten to them saying the account is in dispute and asking for all comminication to be in writing - the reason I'm posting now is that I've just had a very nasty *** from the Coop on the phone (they've rung Sunday 10am and 3pm, Monday at least twice and today).

What can I do about the calls? I don't really understand this 'choose to refuse' thing. What's the chapter and verse on them ringing you after you've asked them not to?

Thanks again for your help.

Brooooooooooce:

Ey up boys

Things are moving on. Had some replies to my SAR requests:

Barclaycard amazingly came up with an original application from 1992, but that's all it was not a single presrcibed term or even t & c's.

Its a wonder they still had that! Unenforcible

Brooooooooooce: MBNA have confirmed that due to 'arhive retreaval issues at Alliance & Leicester' they don't have a copy of the agreement. At the same time A & L confirmed all records were passed to MBNA.

MBNA blaming someone else, surely not!!!

MBNA bought out a number of card providers and its all coming home to roost.

Unenforcible

Brooooooooooce: Coop still say they don't have an agreement but say '...it is of course reasonable that we demonstrate that you entered into a contractual CA and this can be demonstrated by sending you a copy of the CA. I am aware that a copy of the CA was sent to you at the time of opening. I enclose a blank CA...We do not consider the account to be in dispute.'

Well, they would say that, woundn't they. Pity the law and the courts are unlkely to agree. The blank CA discharges their obligation (sort of, anyway) under s78 but the enforcibility depends upon the original being available. A blank copy won't cut any ice in court.

Unenforcible

Brooooooooooce: Halifax very reluctantly sent a copy of a 'pre approved application' again which contained nothing other than my details. No prescribed terms, signature of lender, t & c's.

Halifax actually acknowledged that they didn't have my agreement (silly b****rs). This is little better.

Unenforcible.

Brooooooooooce: I'm just getting a bit peeeeeeeeeeeeeeeeeeed off with the phone calls at the moment. Initially I would answer the call, go through the security blurb and then politely tell them the account is in dispute. Now I just refuse to go through it all and tell them the account is in dispute. I have wrtitten to them saying the account is in dispute and asking for all comminication to be in writing - the reason I'm posting now is that I've just had a very nasty *** from the Coop on the phone (they've rung Sunday 10am and 3pm, Monday at least twice and today).

There are OFT guidelines on calls, look on the OFT website. They do stop after a while, try to make a sport out of it - leave them listening to the telly or something. If you engage on the phone then they will keep hassling you, just ignore them. There is harrassment legislation but I wouldn't depend on it for protection. Few have succeeded. If they get too much, try the TS, sometimes they get involved and achive a result.

Brooooooooooce: What can I do about the calls? I don't really understand this 'choose to refuse' thing. What's the chapter and verse on them ringing you after you've asked them not to?

Thanks again for your help.

Its a BT facility - look it up on their website. You need to have BT as your phone provider to get it. There is a small charge but then you can block calls from certain numbers. Just dial 1471 after a call and add the number to the blocked list.

Remember that the callers are on commission so they need to get payment from you to top up their wages. Its typical of the slave labour incentives employed across the financial sector.

S

Ey up boys!! A million thanks for your replies. Got more stuff to update you with / ask for help:

1. Co-op - this feels a bit weird. For 20 years I have a fair credit rating and never defaulted on anything but I've done it now! Coop have issued a default notice and cancelled the card. Also had a letter off them (the complaints people) saying they won't answer any more correspondence, but equally they have stopped ringing at the moment. What do I do next? Do I just leave it and see what they do? Or I'd thought about sending a 'without prejudice' letter asking if they wanted to discuss a full & final? Or is it too early for that?

2. Halifax - had another letter. I get the feeling that the person writing them doesn't actually read them or know what they've written. Anyway letter states that they were now going to provide a copy of the original signed agreement (just as the previous letter did) and the document was enclosed. The same pre-approved application form, except this time it says that the prescribed terms were on the reverse of the original document, except when you turn it over there is something printed, but not prescribed terms just some blurb from Mercedes Benz about what Halifax Card Services will do next with application. Then the last paragraph of the letter states that 'at the moment we are not able to provide a copy of the original signed agreement' - completely contradicting what they wrote earlier. It feels like a case of the left hand not knowing what the right is doing.

They also state they '..are confident that the agreement remains enforceable.' What to do? Should I reply pointing out all the mistakes in the letter? Ignore it and wait for them to default me? Make a suggestion of a 'without prejudice full and final'? Where are you at with the Halifax Stubie?

The whole thing is a bit daunting. I've now shagged my credit rating. The Halifax prattled on and on about how they've fulfilled their obligations under s.78 and at the same time tell me the required prescribed terms were on the reverse of the application when they clearly weren't - these feckers are just brazen. You chaps are sure that no agreement definitely means unenforcable???!!!!!!!!!! (only kidding). Still a bit paranoid that at the 11th hour they'll come up with the goods and shaft me.

Signed up for the BT 'choose to refuse' service. Costs about £3.50 per month. Last week (we were away) Capital One (Indian call centre) were a nightmare ringing 3/4 times a day - my daughter would explain each time they rang that we were away till Saturday but they just rang back later the same day. I spoke with them on Saturday morning, had a bit of a mad rant, ruined someones day and they haven't rung back since.

Thanks in advance.

Brooooooooooce:

Ey up boys!! A million thanks for your replies. Got more stuff to update you with / ask for help:

1. Co-op - this feels a bit weird. For 20 years I have a fair credit rating and never defaulted on anything but I've done it now! Coop have issued a default notice and cancelled the card. Also had a letter off them (the complaints people) saying they won't answer any more correspondence, but equally they have stopped ringing at the moment. What do I do next? Do I just leave it and see what they do? Or I'd thought about sending a 'without prejudice' letter asking if they wanted to discuss a full & final? Or is it too early for that?

If they want the money they will chase you. That said, the DN should contain details of default remedy and a time scale. They will have to wait to see if you comply. What does the DN actually say?

You can offer F&F settlement at any time. Be sure that any offer is subject to the cancellation of the balance (set to zero), all credit markers removed, destruction of personal data and written confirmation of same.

Make any offer "without Prejudice" as you say, and make it time sensative - offer on table until a date after which it will be withdrawn. Compliance to conditions within so many days and payment only after all activity by bank completed.

Brooooooooooce: 2. Halifax - had another letter. I get the feeling that the person writing them doesn't actually read them or know what they've written. Anyway letter states that they were now going to provide a copy of the original signed agreement (just as the previous letter did) and the document was enclosed. The same pre-approved application form, except this time it says that the prescribed terms were on the reverse of the original document, except when you turn it over there is something printed, but not prescribed terms just some blurb from Mercedes Benz about what Halifax Card Services will do next with application. Then the last paragraph of the letter states that 'at the moment we are not able to provide a copy of the original signed agreement' - completely contradicting what they wrote earlier. It feels like a case of the left hand not knowing what the right is doing.

Halifax.... don't know what they are doing.....Surely not!!!!

If they had it, you would have it by now 99% certain. Huckster makes some observations about document storage which are relevant, they will be filed in one of a million boxes and would take years to trawl through, they never expected to need them! Dis-proportionate cost is the issue but may still apply even on a defaulted balance.

If I was asked to go through a million boxes to find one agreement, I would resign!

Brooooooooooce: They also state they '..are confident that the agreement remains enforceable.' What to do? Should I reply pointing out all the mistakes in the letter? Ignore it and wait for them to default me? Make a suggestion of a 'without prejudice full and final'? Where are you at with the Halifax Stubie?

Halifax have passed my account to Albion Collections and I must "pay now or call a premium number" (read the OFT guidelines boys?) so a letter of dispute has gone off. Wait and see. Oh, and they "may" take legal action!!

Bring it on!! No agreement, no chance.

Brooooooooooce: The whole thing is a bit daunting. I've now shagged my credit rating. The Halifax prattled on and on about how they've fulfilled their obligations under s.78 and at the same time tell me the required prescribed terms were on the reverse of the application when they clearly weren't - these feckers are just brazen. You chaps are sure that no agreement definitely means unenforcable???!!!!!!!!!! (only kidding). Still a bit paranoid that at the 11th hour they'll come up with the goods and shaft me.

Have you checked your credit rating? Don't assume its shagged.

The burden of proof lies with them with regard to what is on the flip side of a document. If they can't produce it, how could they possibly know.

If they produce an agreement at the 11th hour then it should be struck from evidence, or an adjourment allowed to review previously undisclosed documents - the 11th hour doesn't work in law.

Its a game of chess. Remember thast these boys have a legal department and all the treasury handouts to pay for top shelf lawyers etc.Do you ever hear from them, nah, its customer service or collections. If they had a case they would be wheeling you out in the court room to make a public example of you - scare the waverers. All the banks are getting hammered by this snd bank charges. Any win, no matter how small is crucial PR in the media battle and they have the resources to own that battlefield - they are just short on ammunition!

Brooooooooooce: Signed up for the BT 'choose to refuse' service. Costs about £3.50 per month. Last week (we were away) Capital One (Indian call centre) were a nightmare ringing 3/4 times a day - my daughter would explain each time they rang that we were away till Saturday but they just rang back later the same day. I spoke with them on Saturday morning, had a bit of a mad rant, ruined someones day and they haven't rung back since.

Thanks in advance.

Cap one are Manila, Philippines but they do get bored after a while. I haven't heard from them for months. The regulators are closing in on harassment and threatening practices (at long last) so they are having to mute their response systems.

The reason they keep calling back is because it is an automatic dialling system. Unles a payment flag is set, the computer dials you again, then connects you to the next available monkey. If there isn't one, then you get a crank call.

S

Cheers Stubie you're a tip top fella!

Coop - The default notice gives me until 6.11.09 to pay the arrears. Then in big bold letters it says that unless I cough up, the action detailed below MAY be taken against me. 1.Terminate the agreement by written notice (but they've already cancelled the card) and 2. I'll be required to make an immediate payment of the full balance.

Halifax - I think I've had whatever they've got or at least the signed 'agreement' they've produced. I don't think they can have another document somewhere because as you say if they had it, I'd have it. I've read the OFT collection guidelines about premium rate numbers - what the f is going on at that these companies? Are they stupid or are they so smug that they have no regard for the law? I know the answer - it's both!

You're absolutely right - if they had a case, they'd be shafting me right now!

Cheers again Stubie. Keep up the great work, it's really important.