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  • Undercover Elsa
    replied
    Re: Help with Unenforceability [UPDATED 09/2015]

    That is the way to go when the time is right, but if at the moment you're only getting the odd phone call from Robber's Way (which I hope you're ignoring) then if it was me I would wait until they start writing, let us know the content of the letters and we can suggest the best way forward from there. The CCA Request is a tactical tool which can stop them in their tracks when it becomes necessary; for instance if they seriously threaten to issue legal proceedings, as they can't obtain a judgment while a request is outstanding.

    What you have at the moment is a good indication that the debt is probably unenforceable, based on what the SAR has produced. It's incomplete, but they only have to make "reasonable" efforts to find your data.
    However, if a CCA Request is incomplete, it offers you protection against them obtaining a CCJ. That said, if you send too many you run the risk of them digging deeper and finally coming up with the goods. So I'd wait till it's necessary, particularly if you're on the way to it being Statute Barred. When was the last time you made payment or acknowledement of this debt?

    Just my own opinion

    It's probably better if you start a separate thread for this in the Unenforceability Diaries

    Elsa x

    Leave a comment:


  • julian
    replied
    Re: Help with Unenforceability [UPDATED 09/2015]

    SAR may contain a copy of the Credit Agreement and may indicate in the logs which sets of Terms of Conditions they have available. Sometimes some or all the documents are supplied sometimes a mixture of documents and logs. If the Credit Agreement was made online there may be a list of the data fields.

    The CCA request deals specifically with the Credit Agreement and sets of Terms of Conditions. The CCA request requires them to respond with True Copies of all.

    In brief, to be sure send a CCA request. Then you will see what you can challenge, or the forum can help you understand.

    Leave a comment:


  • realfedup
    replied
    Re: Help with Unenforceability [UPDATED 09/2015]

    Hi. Im part of the MKDP assigned to Hoist club, and getting the odd call from Robberways.
    i would just like to be clear(er) as to what they have and have not got. Was thinking of doing a follow up to the SARs pointing out that the agreement doc was incomplete and for them to send me a copy of ALL they have in relation to the document. I'm a little confused as to whether they are obliged to send me a copy of the full agreement under SAR, or if i have to do a separate CCA request:-(

    Leave a comment:


  • Undercover Elsa
    replied
    Re: Help with Unenforceability [UPDATED 09/2015]

    Hi Realfedup,
    If someone is chasing you for this then an incomplete SAR doesn't offer the same legal protection that an incomplete CCA Request does.
    If you answer MrsD's questions we can suggest the best way forward

    Elsa x

    Leave a comment:


  • MrsD
    replied
    Re: Help with Unenforceability [UPDATED 09/2015]

    very often SARs are incomplete but if they are saying that's all they've got and it IS incomplete, that is better for you.

    Have you had any letters from creditors about this one? and if so what did they say? and when?

    Leave a comment:


  • realfedup
    replied
    Re: Help with Unenforceability [UPDATED 09/2015]

    Hi


    ive had some info back from a SARs . The card was originally a MSDW CC. I'm a bit concerned about what has been sent.
    Part 1 application form (one A4 sheet)
    has my name typed in (as i recall it was one of those posted to me ‘come and get me’ pre printed teaser forms)
    hand filled in details, sections 1-11.
    Section12 is titled ‘About this agreement’ - however the print is completely unintelligible. (as is the print for most of the form actually)
    At the bottom of this page it states
    ‘now please turn over and sign the agreement Part 2.


    i have not been provided with Part 2 (overleaf) showing my signature and/or any other detail. So frustrating. Will i have now to fork out £1 for a CCA request or should i complain that the SARs is incomplete.


    would the fact that the unintelligible print mean the CCA is unenforcible? and should my signature be on the same page as Section 12, which details the agreement?


    This maybe in the wrong thread, Please accept my apologies if this is the case.

    Leave a comment:


  • Never-In-Doubt
    replied
    Re: Help with Unenforceability [UPDATED 09/2015]

    Originally posted by cardiac arrest View Post
    can you precis that for me...
    Yea - it's confusing (and I still think my post (#371) above stands)

    Leave a comment:


  • cardiac arrest
    replied
    Re: Help with Unenforceability [UPDATED 09/2015]

    Originally posted by PlanB View Post
    I don't know whether this link will work (I'll provide another source if it doesn't) but this seems to explain the Tender Before Claim legal argument with case law to support it.

    I found the case of the French hotelier fascinating



    http://www.raymondcoxqc.com/wp-conte...ad-Payment.pdf

    Plan B x
    can you precis that for me...

    Leave a comment:


  • PlanB
    replied
    Re: Help with Unenforceability [UPDATED 09/2015]

    I don't know whether this link will work (I'll provide another source if it doesn't) but this seems to explain the Tender Before Claim legal argument with case law to support it.

    I found the case of the French hotelier fascinating



    http://www.raymondcoxqc.com/wp-conte...ad-Payment.pdf

    Plan B x

    Leave a comment:


  • Never-In-Doubt
    replied
    Re: Help with Unenforceability [UPDATED 09/2015]

    Originally posted by PlanB View Post
    Watch this space . . . .

    Plan B x
    If there's a case going through court then great - as I say there are few cases to use as examples with such implicit criteria as per the question asked so anything would be good to work with and get a basis of action from.....

    I still think a Part 36 offer would be better served in 99.99% of cases (but open to change my mind if this *watch this space* pays off).

    Leave a comment:


  • PlanB
    replied
    Re: Help with Unenforceability [UPDATED 09/2015]

    Originally posted by Never-In-Doubt View Post
    unless there is a case that's been won where the tender was a monthly instalment .
    Watch this space . . . .

    Plan B x

    Leave a comment:


  • Never-In-Doubt
    replied
    Re: Help with Unenforceability [UPDATED 09/2015]

    Originally posted by PlanB View Post
    Not necessarily.

    It depends on the amount "tendered" and whether that "tender" was accepted even if it was to be paid by installments. That accepted "tender" may become the new "amount due" despite any previous contract if a payment has been made in accordance with the accepted "tender".



    Plan B x
    Fair enough, but that isn't how I read it. I've always seen it as ultimately down to the court, but the offer (tender) must be for the full amount owed - not an instalment amount owed. If the court finds that a larger sum is due than was tendered, the defence must fail so it'd always be a risky maneuver; why risk it when a Part 36 offer does the same and has less risks and allows for part offer (ie instalments)....

    If I do an example then it'll make more sense to others as well (this is my interpretation).....

    Lets assume I borrow £250 from you repayable on demand. You then demand the £250 back and I offer you it in 25 £10 notes. You refuse and ask for 5 x £50 notes to which I laugh and tell you to get lost so you decide to issue a claim (small claims at this stage). I then pay the original £250 into court (pleading Defence of Tender). The judge would usually find in my favour and thus return the tender amount of £250 to me and you'd lose out.

    If however, on the flip side, I only tendered £60 to the court, because lets assume we agreed £10 per month for 25 months, then it's likely I would lose and the judge would find in your favour for the full claim amount. The reason being that he would have to agree that the Defence of Tender would only apply if the full amount due was offered as tender to the court.

    https://www.justice.gov.uk/courts/pr...art37#IDAALICC

    As I say, that's my understanding and from everything I have seen to date the system agrees with this - unless there is a case that's been won where the tender was a monthly instalment - then I will stick with my assertion as there are lots of different cases which tends to go with the same view.

    Leave a comment:


  • PlanB
    replied
    Re: Help with Unenforceability [UPDATED 09/2015]

    Originally posted by PlanB View Post
    And even if the creditor does issue a claim the Defence of 'Tender Before Claim' may assist too

    http://uk.practicallaw.com/3-205-5126

    Originally posted by Never-In-Doubt View Post
    That only applies if the debtor can repay in full (ie the "amount due"). Not monthly token payments
    Not necessarily.

    It depends on the amount "tendered" and whether that "tender" was accepted even if it was to be paid by installments. That accepted "tender" may become the new "amount due" despite any previous contract if a payment has been made in accordance with the accepted "tender".



    Plan B x

    Leave a comment:


  • cardiac arrest
    replied
    Re: Help with Unenforceability [UPDATED 09/2015]

    Originally posted by Never-In-Doubt View Post
    That only applies if the debtor can repay in full (ie the "amount due"). Not monthly token payments
    I wasjust going to ask what that meant ..the full amount or the missed (token) payment... and yes, they seem happy to post me statements every month which must be costing them more than I'm paying...year after year, but hey...maybe one day they'll just ask me to go away....

    Leave a comment:


  • Never-In-Doubt
    replied
    Re: Help with Unenforceability [UPDATED 09/2015]

    Originally posted by PlanB View Post
    And even if the creditor does issue a claim the Defence of 'Tender Before Claim' may assist too

    http://uk.practicallaw.com/3-205-5126

    Plan B x
    That only applies if the debtor can repay in full (ie the "amount due"). Not monthly token payments

    Leave a comment:

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