UE - Question

[Diasflac]

I was wondering generally about this. If you do go down this method and they cannot pursue the debt. Can you demand defaults and missed payments, well, the whole agreement, be removed from your credit file?

Another question on this is when the credit agreement was online so there is no signature but a "digital" signature, how does this work?

[Deepie]

Re: UE - Question

McGuffick v RBS (2009).....Put a stop to that.

[fluffystuff]

Re: UE - Question

Hi there!

It is not a matter of wether a creditor can pursue you for a debt, they can and they will. It is a matter of wether a debt is enforceable.
If you default on your payments, that is, you miss them, then a creditor will record them as a true and accurate reflection of your circumstances. In that case, you would have no right to demand their removal, wether the debt is enforceable or not.

Hope that helps.

[SaltnVinegar]

Re: UE - Question

I was wondering generally about this. If you do go down this method and they cannot pursue the debt.

If you go down the UE route, even if it is UE, a debtor can still pursue you to pay the debt by the usual threat-o-grams, phone calls, harassment etc. UE means a debt cannot be enforced through the courts, doesn't mean they can't pursue you for the debt through 'collection activities'

Can you demand defaults and missed payments, well, the whole agreement, be removed from your credit file?

You can request they do so, but they won't, and recent judgements favour creditors in their ability to still record account conduct with CRA's

Another question on this is when the credit agreement was online so there is no signature but a "digital" signature, how does this work?

Depends on when the agreement was executed.

I think it would be best for you to start at the basics and understand the legislation and processes:

UPDATED - A Full Guide to Unenforceability - allaboutFORUMS

Best
SnV

[Diasflac]

Re: UE - Question

McGuffick v RBS (2009).....Put a stop to that.

So if I ask for a copy of a credit agreement, and they've lost it, I still have to pay?

The reason I ask is at the moment with my IVA, although the IVA restricts this and I can get them removed without the IVA this happens: Creditor Defaults and passed to DCA they add themselves to my creditfile as default account, they get no luck with the IVA and pass to someone else who does the same.

If I had no IVA I could end up with multiple defaults for the same debt, is this allowed? I just wondered under this if I could stop the ones my IVA misses with this.

[SaltnVinegar]

Re: UE - Question

So if I ask for a copy of a credit agreement, and they've lost it, I still have to pay?

No Deepies referring to what is meant by 'enforcement'.

If you don't want to read the whole judgement the relevant section is here:

1. The meaning of enforcement
2. The Consumer Credit Act does not define what constitutes "enforcement" and therefore does not define what actions a creditor may not undertake during a period when the agreement is unenforceable. Both sections 76 (dealing with provisions in agreements which entitle a creditor to take certain steps when an event, such as bankruptcy, occurs, but there is no breach of contract by the debtor) and 87 (dealing with the entitlement of the creditor to take such steps where there has been a breach) contemplate that those steps will amount to enforcement. Those steps include matters which might be said to be obviously enforcement such as (under section 87), enforcing security or (under both sections) recovering possession of goods or land.
3. Both sections also include two steps which might be said less obviously to amount to enforcement: (i) demanding earlier repayment of any sum and (ii) treating any right conferred on the debtor by the agreement as terminated, restricted or deferred. The former of these is referring to a provision in the agreement which provides that on the occurrence of the triggering event (in a non-breach case within section 76) or of default amounting to breach under section 87, the creditor is entitled to demand immediate repayment of the total amount outstanding under the agreement. It was no doubt because the agreement in the present case contained such a provision that the bank served the default notice as it did on 16 May 2007.
4. However, nothing in either sections 76 or 87 can be said to give one any real clue as to the parameters of the concept of enforcement, for the purposes of determining what, if any, action by the creditor is permissible during the period when the agreement is unenforceable by virtue of section 77(1), let alone whether, as the claimant contends, reporting to the CRAs amounts to enforcement and so is not permitted during that period.
5. Mr Moran's third proposition as set out in paragraph 37 above is to the effect that any coercive action to compel or secure performance of the removed obligation or liability of the debtor to make repayment amounts to "enforcement" and that reporting to CRAs is such coercive action. Accordingly, it is submitted that such reporting is not permitted so long as the agreement is unenforceable.
6. I have no doubt that, contrary to the claimant's submissions, this proposition does not follow from the judgments of the House of Lords in Wilson. That case does not deal anywhere with what constitutes enforcement let alone whether reporting to CRAs amounts to such "enforcement". The question then arises whether the meaning of "enforcement" for which the claimant contends finds any support from any other authority. In his submissions, Mr Moran did not rely upon any other decision to support the meaning for which he contends. Rather he relied in somewhat general terms on the Consumer Protection from Unfair Trading Regulations 2008 in support of the proposition that the concept of "enforcement" should be given the wide meaning for which he contends. I will return in the next section of this judgment to deal with my conclusion that reliance on the Regulations by the claimant is misplaced.
7. In contrast, the bank invited the court (as set out in the list of issues) to conclude not only that reporting to the CRAs did not amount to enforcement, but that a number of other activities did not constitute enforcement: (i) reporting to CRAs without also telling them that the agreement is currently unenforceable; (ii) disseminating or threatening to disseminate the claimant's personal data in respect of the agreement to any third party; (iii) demanding payment from the claimant; (iv) issuing a default notice to the claimant; (v) threatening legal action and (vi) instructing a third party to demand payment or otherwise to seek to procure payment.
8. So far as activities (iii) to (vi) are concerned, it was accepted on behalf of the claimant that these did not amount to enforcement or actions to enforce the agreement. That concession seems to me to be correct: at most these activities are steps preparatory to subsequent enforcement. Furthermore, in a recent decision, Rankine v American Express Services Europe Ltd [2009] CCLR 3, HHJ Simon Brown QC (sitting as a Deputy High Court Judge) concluded that the bringing of proceedings is only a step taken with a view to enforcement and not actually enforcement. It seems to me that that conclusion must be correct. Were it otherwise, as Mr Handyside pointed out, one would be left with the conundrum that the creditor could not apply to the court for an enforcement order under section 127(1), because to do so would amount to enforcement, not permitted by section 65(1).
9. Once it is recognised that the bringing of proceedings is not enforcement, it necessarily follows that activities (iii) to (vi) do not constitute enforcement, since they are all steps taken prior to the commencement of proceedings and therefore by definition, at most, steps taken with a view to enforcement.
10. I do not consider that either reporting to the CRAs or the related activities referred to in (i) and (ii) come anywhere near amounting to enforcement if activities (iii) to (vi) are not enforcement. These activities are concerned with reporting to CRAs or other third parties and are not even steps taken prior to enforcement such as threatening proceedings would be. Even if one accepted (which for reasons given earlier in this judgment I do not) the claimant's somewhat pejorative categorisation of reporting to CRAs as being motivated by the desire to pressurise the claimant into paying the outstanding balance, at its highest that is an attempt by indirect means to persuade the claimant to pay. If demanding payment directly or through a third party does not amount to enforcement, it is difficult to see how such indirect means could do so, even if the claimant were right as to the relevant motive of the bank.
11. Mr Moran sought to support the claimant's case that reporting to CRAs amounted to enforcement, by reference to a passage in the Crowther Report on Consumer Credit which preceded the passing of the 1974 Act. That passage at paras 6.10.27 and 6.10.28 was headed "Extra-Judicial Enforcement Methods" and provided as follows:
    6.10.27 Within certain limits, a creditor is entitled to exercise self-help and to take steps for his own protection which do not involve recourse to the courts. Repossession of secured goods is one such method, though restrictions are imposed by existing legislation and these would continue to apply under the Consumer Sale and Loan Act.
    6.10.28 There are, however, various forms of pressure put on debtors which are improper and cause considerable hardship and anxiety to the debtors concerned. These methods include threats of violence, calls on the debtor in person or by telephone late at night or early in the morning, threats to blacklist the debtor or to report him to his employer, the despatch to the debtor's home of vans carrying signs prominently indicating that they are from a debt collecting agency, and so on. Harassment of this kind, which was made the subject of specific recommendations by the Payne Report (paragraphs 1238 et seq.) is now an offence under section 40 of the Administration of Justice Act, 1970. We therefore do not propose to go over this ground again.
12. I have some doubt as to whether the authors of the Report really intended that the improper and now criminal activity described in para 6.10.28 should be described as an enforcement method, other than in a loose, colloquial sense. However, whatever the Report intended, it seems to me impossible to categorise reporting to the CRAs or related activities (which could not even begin to be described as improper, let alone criminal, as indeed Mr Moran was at pains to accept) as enforcement.
13. It follows that, in my judgment the reporting to CRAs and related activities do not constitute enforcement for the purposes of the Consumer Credit Act.

[Deepie]

Re: UE - Question

So if I ask for a copy of a credit agreement, and they've lost it, I still have to pay?

They will ask you to pay.....Like they did with me but I haven't paid a penny for 5 years now...

Just means it cannot be enforced through the courts like SV said in the above post...

[SaltnVinegar]

Re: UE - Question

So if I ask for a copy of a credit agreement, and they've lost it, I still have to pay?

The reason I ask is at the moment with my IVA, although the IVA restricts this and I can get them removed without the IVA this happens: Creditor Defaults and passed to DCA they add themselves to my creditfile as default account, they get no luck with the IVA and pass to someone else who does the same.

If I had no IVA I could end up with multiple defaults for the same debt, is this allowed? I just wondered under this if I could stop the ones my IVA misses with this.

How long have you been on an IVA?

I would be very careful about breaching any terms of an IVA once you have gone down this route without VERY careful thought of the consequences and the actions you are carrying out.

[Diasflac]

Re: UE - Question

How long have you been on an IVA?

I would be very careful about breaching any terms of an IVA once you have gone down this route without VERY careful thought of the consequences and the actions you are carrying out.

I have debts outside the IVA I would use this on to be honest, I'm trying to rebuild my credit file, although they have already defaulted, the fact these DCA's try to add onto my credit file worries me. My IP forces them to take them off my credit file when they do but for anything outside of the IVA I have no way of stopping them do I?

I did read the whole judgement that's why I asked, they cannot enforce the debt in court, but they can hound you for payment for the rest of your life?

[SXGuy]

Re: UE - Question

You cant stop defaults that arnt part of your IVA, it would be like, stopping debts registered after a bankrupcty, same princple.

If your not paying the agreed amount each month you will get a default regardless of UE or not.

[SaltnVinegar]

Re: UE - Question

I did read the whole judgement that's why I asked, they cannot enforce the debt in court, but they can hound you for payment for the rest of your life?

Your goal is for the debt to become statute barred - 5 years in Scotland, and 6 years in England.

Once a debt has become SB they can go whistle for it which is the point.

The initial goal is to get them to report a default on your credit file - this will then drop off your credit file after 6 years although many creditors will only go back as far as 3 years.

They can of course, take you to court for a CCJ at any point up to it being SB.

This is the dance you make.....

[Diasflac]

Re: UE - Question

You cant stop defaults that arnt part of your IVA, it would be like, stopping debts registered after a bankrupcty, same princple.

If your not paying the agreed amount each month you will get a default regardless of UE or not.

You've misunderstood what I meant, the original default I'm happy with. What is happening at the moment is when the original creditor passed the buck to a DCA they register an account on my CRA as defaulted, this creates 2 defaults for the same debt. When they got no luck and pass it again the same happens. At one point I had 4 defaults for my HFC loan, HFC, moorcroft scott call then motormile finance. My IP got them all removed except for the HFC one.

Outside of an IVA can they give me multiple defaults per debt? it would make my CRA look far worse.

[SaltnVinegar]

Re: UE - Question

Outside of an IVA can they give me multiple defaults per debt? it would make my CRA look far worse.

No - one default per debt. If they do then you get them removed. Complaint to the ICO and the FOS if you can demonstrate they do this repeatedly and they get fined and you may even get some compensation....

[Diasflac]

Re: UE - Question

No - one default per debt. If they do then you get them removed. Complaint to the ICO and the FOS if you can demonstrate they do this repeatedly and they get fined and you may even get some compensation....

Wow, will have to do that, Equifax has all my reports and notes saved so I even have it hand if needed. Thanks!

[SXGuy]

Re: UE - Question

Just be careful your not confusing 1 default marked as settled by the old owner, and a new one being registered by the new owner, as thats how it should look.