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Help with Unenforceability [UPDATED 01/2020]
Help with Unenforceability
This is the shared discussion for people to post any questions, that do not want to have their own diary thread. It would be used for the odd random question that doesn't form part of a long term strategy - however if things change and you end up posting more frequently, we'll automatically move the posts to your own diary thread so don't worry, you won't go wrong.
If you do decide to start a diary, then simply Start a New Thread.
Most importantly, have fun and relax a little - we're all here, whether in the same boat as you or to help, we do not judge! If anyone gives you any abuse whatsoever please PM anyone from the site team and we'll deal with it swiftly and severely.
What is Unenforceability?
The Consumer Credit Act 1974 (CCA1974) & Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) set terms for financial agreements and products such as credit cards, loans, hire purchases, mortgages and other forms of borrowing. These regulations included important items that made the agreement legal and sound. Yet despite these laws, many banks did not include all the important parts within the paperwork meaning if your loan, credit card, catalogue or higher purchase finance was offered, or agreed to, with a faulty contract or disclosure the bank may not be able to enforce the agreement. Unfortunately overdrafts, mobile phones & utilities are exempt from the CCA1974 and so cannot be considered for unenforceability.
What is this thread about?
There are still lots of myths regards to unenforceability and whether 'you can get your debt wiped' (or words to that effect!). The bottom line is that if you have a credit product, from before April 2007, and the Original Creditor (OC) or Debt Collection Agency (DCA) has already defaulted you then it does no harm whatsoever to apply for your Consumer Credit Agreement (CCA) to check whether it is lawful. If you've not yet been defaulted and have a sound credit file, then this may not be the best route for you as a default is almost inevitable, and permitted within the Consumer Credit Act 1974 (CCA1974).
What will the advice on thread do for me?
The advice offered will allow you to request your CCA and check whether it is compliant with the strict criteria set down by parliament (the Act). If it does comply, then you would simply agree to a repayment plan, or fall back to your original plan of more formal action such as a B/R Petition or the like. However if it does not, then you may claim unenforceability which means that the debt, although it will exist, cannot be pursued through the courts.
What about the positives?
There are plenty of positives as to what may happen once you consider unenforceability, the main one being that you cease payments to the debt. The lender can and will chase you for repayment (McGuffick v RBS 2009), however whilst the account remains in default (unenforceable), the OC or DCA have their hands tied meaning they cannot obtain a court judgment against you. These include a CCJ or Charging Order.
What about the negatives?
There will always be downsides, as well as upsides, no matter what you decide to do. The only person that knows if following this advice is suitable is you - the debtor. Once you've read the first few posts of this thread and decided you wish to proceed then advice will be forthcoming, so long as you are prepared for the barrage of calls, nasty threats and defaults registered against you.
Remember unenforceability is not a get out of paying your debts technique, it is a last resort before considering more formal action, such as Bankruptcy, IVA or DRO.
Next Steps...
If you're ready to tackle your debts, and consider the unenforceability route then simply post a reply to this message or start your own diary over in the Unenforceability Diaries section.
This is the shared discussion for people to post any questions, that do not want to have their own diary thread. It would be used for the odd random question that doesn't form part of a long term strategy - however if things change and you end up posting more frequently, we'll automatically move the posts to your own diary thread so don't worry, you won't go wrong.
If you do decide to start a diary, then simply Start a New Thread.
Most importantly, have fun and relax a little - we're all here, whether in the same boat as you or to help, we do not judge! If anyone gives you any abuse whatsoever please PM anyone from the site team and we'll deal with it swiftly and severely.
What is Unenforceability?
The Consumer Credit Act 1974 (CCA1974) & Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) set terms for financial agreements and products such as credit cards, loans, hire purchases, mortgages and other forms of borrowing. These regulations included important items that made the agreement legal and sound. Yet despite these laws, many banks did not include all the important parts within the paperwork meaning if your loan, credit card, catalogue or higher purchase finance was offered, or agreed to, with a faulty contract or disclosure the bank may not be able to enforce the agreement. Unfortunately overdrafts, mobile phones & utilities are exempt from the CCA1974 and so cannot be considered for unenforceability.
What is this thread about?
There are still lots of myths regards to unenforceability and whether 'you can get your debt wiped' (or words to that effect!). The bottom line is that if you have a credit product, from before April 2007, and the Original Creditor (OC) or Debt Collection Agency (DCA) has already defaulted you then it does no harm whatsoever to apply for your Consumer Credit Agreement (CCA) to check whether it is lawful. If you've not yet been defaulted and have a sound credit file, then this may not be the best route for you as a default is almost inevitable, and permitted within the Consumer Credit Act 1974 (CCA1974).
What will the advice on thread do for me?
The advice offered will allow you to request your CCA and check whether it is compliant with the strict criteria set down by parliament (the Act). If it does comply, then you would simply agree to a repayment plan, or fall back to your original plan of more formal action such as a B/R Petition or the like. However if it does not, then you may claim unenforceability which means that the debt, although it will exist, cannot be pursued through the courts.
What about the positives?
There are plenty of positives as to what may happen once you consider unenforceability, the main one being that you cease payments to the debt. The lender can and will chase you for repayment (McGuffick v RBS 2009), however whilst the account remains in default (unenforceable), the OC or DCA have their hands tied meaning they cannot obtain a court judgment against you. These include a CCJ or Charging Order.
What about the negatives?
There will always be downsides, as well as upsides, no matter what you decide to do. The only person that knows if following this advice is suitable is you - the debtor. Once you've read the first few posts of this thread and decided you wish to proceed then advice will be forthcoming, so long as you are prepared for the barrage of calls, nasty threats and defaults registered against you.
Remember unenforceability is not a get out of paying your debts technique, it is a last resort before considering more formal action, such as Bankruptcy, IVA or DRO.
Next Steps...
If you're ready to tackle your debts, and consider the unenforceability route then simply post a reply to this message or start your own diary over in the Unenforceability Diaries section.
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