SarahSarah Diary: UE and negotiating settlements

[Joanna Connolly Solicitors]

In July 2013, Bank Of Scotland wrote to me to advise that it had assigned all of its respective rights, titles and interest (including the outstanding balance) to Aktiv Kapital Portfolioin Oslo. The total balance sold was £7,759.70. And that I should now contact Activ. My DMP did and set up a payment.

In Jan 2015, PRA Group wrote to me to say that the account was assigned to them from Aktiv Kapital. "This means we have been assigned all rights, title and interest ... and are entitled to all sums owed..... For your info on 6th Nov 2014 Aktiv Capital changed it's name to PRA Group".

I have been trying off and on to get info on whether I had PPI on this account since 2012, always with letters back (last one April this year) from BOS saying they either need more info or can't find any details on accounts held in my name etc etc.

In which case in order to enforce this debt in court PRA would need to prove the whole assignment chain (i.e. BOS to Aktiv Kapital and then to PRA.

We won a case in court recently where they were unable to do that.

If BOS can't find any details of accounts held in your name then how was PRA able to produce your credit agreement?

You need to get that SAR/GDPR request sent pronto.

And send one to all your other original creditors because at the moment you are boxing in the dark

Di

[cymruambyth]

Just remember that there can be errors other than the agreement such as assignment and default notices. Read some of the UE diaries, especially some of the older ones because these give you an idea of how successful stalling tactics work. There is a lot to understand about surviving and winning, not all of it straightforward. We have a brilliant legal team which you hopefully won’’t have to use, who keep winning and finding new errors with the way that DCAs work

[Still Waving]

Thanks SW. Apologies if you feel you are repeating yourself, I suppose what I'm struggling with is the borrower's (me) argument in this situation. I understand that there are procedures companies should follow and plenty haven't and because of that, many accounts can turn out to be unenforceable and that's a win for us, the poor sods saddled with a mountain of debt. But I'm struggling with those that turn out to be enforceable. If you were having this conversation with me in a pub, just chatting, and I said "but what am I arguing if the debt is enforceble? Where do I stand?", how would you sum it up? Are we basically just playing them at their own game or do we have a valid point and are within our rights to drag out an enforceable debt?

With respect - you have been given a lot of information on this thread thus far, and I don't think you have given yourself time to fully digest it. Di has explained a lot of this in post #33.

There is a lot to take in, and I really would recommend taking it slowly, slowly and not get too far ahead with what-if's. You have gaps in your information due to being in a DMP so, as Di has suggested, send a Subject Access Request (SAR) to the DMP provider, as this should help fill some of those gaps.

(See this link for the the suggested letter of request) https://www.all-about-debt.co.uk/for...18#post1510818

[MisterK]

Nobody wants to be in debt and even less to be in a situation where they can't repay debt. If you are in that situation then you have to do the best you can for yourself in exactly the same way that banks do the best for themselves. If that means playing them at their own game or dragging out an enforceable debt for best advantage then so be it.

[SarahSarah]

Thank you MisterK - I have only just seen your post. Thoughts on the above (56)? Playing them at their own game I imagine...?!

Seriously, thanks everyone.

[SarahSarah]

As you have already been told, there is no incentive in the early days for them to agree to a reduced balance settlement which you are likely to be happy with. Say you make an offer and they reject it and counter with an offer which you feel is too high, what then? You are back at square one, and have reset the SB clock by acknowledging the debt.

Once they find it is proving difficult to get a repayment from you over a period of time, then they may start to take a pragmatic view and accept a lower settlement. You should treat each account on a case by case basis, regardless of whether or not they are thought to be enforceable.

Remember though, that it is only a Court that can decide definitively whether a debt is enforceable, and you will have plenty of opportunity to prevent it actually going to Court .

Thanks SW. Apologies if you feel you are repeating yourself, I suppose what I'm struggling with is the borrower's (me) argument in this situation. I understand that there are procedures companies should follow and plenty haven't and because of that, many accounts can turn out to be unenforceable and that's a win for us, the poor sods saddled with a mountain of debt. But I'm struggling with those that turn out to be enforceable. If you were having this conversation with me in a pub, just chatting, and I said "but what am I arguing if the debt is enforceble? Where do I stand?", how would you sum it up? Are we basically just playing them at their own game or do we have a valid point and are within our rights to drag out an enforceable debt?

[SarahSarah]

Well you have had a wealth of good advice. For each letter of offer add 73 months before Statute Barred.

Thanks Roger. Couple of things... What do you mean by this? Also what is a SAR?

THANKS!

[Still Waving]

I've spent all day on this and while I feel more clued up on UE and understand the process of back and forth letter writing, I still don't know what to do if the two I think are enforceable actually are. Let's say we know they are now, I'm not sure where I stand and how I should operate when I have others that I am going down the UE route with?? Can I negotiate settlements?

As you have already been told, there is no incentive in the early days for them to agree to a reduced balance settlement which you are likely to be happy with. Say you make an offer and they reject it and counter with an offer which you feel is too high, what then? You are back at square one, and have reset the SB clock by acknowledging the debt.

Once they find it is proving difficult to get a repayment from you over a period of time, then they may start to take a pragmatic view and accept a lower settlement. You should treat each account on a case by case basis, regardless of whether or not they are thought to be enforceable.

Remember though, that it is only a Court that can decide definitively whether a debt is enforceable, and you will have plenty of opportunity to prevent it actually going to Court .

[SarahSarah]

Did PRA give you a reason for the debt being unenforceable?

Did they say that it was curranty unenforceable because they would need to ask the original creditor for the information (leaving the door open for them to succeed in that mission) or did they say they had been told by Barclaycard that the credit agreement didn't exist?

If you only make a partial settlement then the debt owner may have the right to sell on the part which was not settled so you could be chased by the next one. Any settlement would need to be Full & Final to prevent that scenario.

Di

They said that it was currenty unenforceable because they are awaiting further documents, so no, not confirmed as UE yet. Apologies!

I have since realised that this debt will fall of my credit file in 2019, so I will just leave it and not seek a settlement.

[Roger]

Well you have had a wealth of good advice.
You can off course do whatever you wish. For each letter of offer add 73 months before Statute Barred. The AAD way is Silence and gathering information (takes rather more than One Day!)
The Law changes and advice previously may no longer be relevant
I suggest that you look at your SAR's for all your debts and NOT ping pong communicate with DCA's. But this of course will be your own choice. .DCA's are multi billion global businesses and you and I just solitary individuals struggling for a crust of bread.

[SarahSarah]

Has anyone seen that credit agreement to take a view of whether that document is enforceable or not?

As explained in my PRA v Mayhew case they produced two signed credit agreements but the Judge (Recorder) ruled both were irredeemably unenforceable for other reasons.

Did MBNA issue/serve you with a compliant Default Notice before the account was terminated and assigned to Link?

Have you been sent an annual Notice of Sums in Arrears since the account was defaulted?

A s77-78 CCA Request is for 'information' purpose not 'proof' purpose.

Di

I have now sent this to Never-In-Doubt

I don't have a letter from MBNA saying they are passing on the debt, but I am missing some paperwork so can't guarantee they never sent one. I haven't heard from MBNA re the debt since I switched to a DMP in 2007. I have howveer been chasing PPI intermittently.

No Notice of Sums from MBNA, but a Statement of Account from Link every 6 months.

[MisterK]

I commented on this issue in post #45 which you might not perhaps have seen yet. Basically If you have both UE & enforceable agreements you don't really operate any differently, You just have to be prepared to negotiate a settlement at some point with enforceable agreements, whereas you don't need to negotiate at all if the agreement is UE. The DCA (creditor) will not necessarily know or care whether it's UE or otherwise. To them it's a numbers game and thousands of accounts are lumped together. It's only when they get close to issuing a claim that the difference between the two (UE or enforceable) starts to matter. And only then because you have done the work and the research and placed yourself in a position to know which it is in your case so that you can deal with it to the best effect.

[SarahSarah]

You could be chased by third parties who are merely acting as agents for the owners, or you could be chased by third parties who have bought the debt from the original creditor. With this second group as they would legally own the debt you would owe them. However there is a moral argument you can have (with yourself only) that, as they probably only paid around 10% of the debt value, why should you pay them 100%.

Importantly, if you decide to go the UE route and stop paying, then you also need to be careful not to acknowledge the debt in any letter you send (which should only be in response to a letter received, if it absolutely needs a response). Always, if in doubt what to say - or whether to say anything at all - seek advice here.

I've spent all day on this and while I feel more clued up on UE and understand the process of back and forth letter writing, I still don't know what to do if the two I think are enforceable actually are. Let's say we know they are now, I'm not sure where I stand and how I should operate when I have others that I am going down the UE route with?? Can I negotiate settlements?

[Still Waving]

So basically, now that all debts are being chased by 3rd parties, my stance (to myself) for the next 6 years is "I didn't take out a credit agreement with you and therefore I don't owe you ". Is that it??

All of mine, bar one, defaulted more than 6 years ago and have already fallen off my credit file. The last one (Barclaycard. PRA) will do so in July next year.

You could be chased by third parties who are merely acting as agents for the owners, or you could be chased by third parties who have bought the debt from the original creditor. With this second group as they would legally own the debt you would owe them. However there is a moral argument you can have (with yourself only) that, as they probably only paid around 10% of the debt value, why should you pay them 100%.

Importantly, if you decide to go the UE route and stop paying, then you also need to be careful not to acknowledge the debt in any letter you send (which should only be in response to a letter received, if it absolutely needs a response). Always, if in doubt what to say - or whether to say anything at all - seek advice here.

[SarahSarah]

Digging through all my paperwork, I realise how desperate I was at the time I took out the DMP. These guys gave me the impression that they would keep the wolves from the door, which they did, but that they would proactively look to settle the debts, which they didn't. And they made about £5k out of me. Grrr. I've been too scared to rock the boat before now, so truly, thanks everyone who has contributed to my thread so far. I'm still a little unsure of what the heck I'm doing but I'm keen to move on, regardless of pace!