SarahSarah Diary: UE and negotiating settlements

[SarahSarah]

Which one is that?

Di

CORRECTION, I have two that are enforceable (signed agreements received, one checked by Niddy)... MBNA/ Link for £1,000 and BOS/ PRA for £6k. I am updating the individual debts on the first page of this thread as I go - think that's the cleanest way to see all the info...??

As I see it, my two next steps are:

1. Write to PRA again regarding the RBS loan (£17k) to say that a "True Copy" is not sufficient and ask again for a signed copy. I will look for a template for this, but if anyone can post a link to it in the meantime, that would be great.
2. Cancel the DMP.

Now, what is the general advice if you have some enforceable and some UE?

I probably have enough saved to cover settlements of the 2 enforceable (if they agree) and am keen to get them sorted so I can move on. The UE ones can then be dealt with on an ongoing basis for the next - gulp - 6 years. I undertsand the advice that this may alert the other companies but if they are all UE anyway, doesn't it make sense that what little cash I have to pay debts off, I'd pay those that are legally owned and enforceable?

Secondary to this, I have one UE and one enforceable with PRA... how should I handle this??

[SarahSarah]

You mention not wanting to have to send Income/expenditure details to any of the creditors? What I would advise is that you do not send any financial details to any creditors if you were following the U/E route - You are not obliged to and it wouldn't be sensible to so on that score there would be nothing to be worried about.

But what about those that are enforeable? If I am self managed, surely they'll want a financial statement to see what I can afford to pay? And if I'm paying less on account of ceasing payments to the UE debts, these guys will want more.

[Joanna Connolly Solicitors]

As I see it, my two next steps are:

1. Write to PRA again regarding the RBS loan (£17k) to say that a "True Copy" is not sufficient and ask again for a signed copy. I will look for a template for this, but if anyone can post a link to it in the meantime, that would be great.
2. Cancel the DMP.

Now, what is the general advice if you have some enforceable and some UE?

I probably have enough saved to cover settlements of the 2 enforceable (if they agree) and am keen to get them sorted so I can move on. The UE ones can then be dealt with on an ongoing basis for the next - gulp - 6 years. I undertsand the advice that this may alert the other companies but if they are all UE anyway, doesn't it make sense that what little cash I have to pay debts off, I'd pay those that are legally owned and enforceable?

From what you've said on your thread so far your plan is to establish in black and white that a debt is enforceable or unenforceable.

You then plan to use the unenforceable status to negotiate a low as possible settlement or you plan to cease payments to the ones which are unenforceable.

You plan to make F & F offers to the ones you believe are enforceable because a credit agreement has been produced but you have no knowledge of any other reasons for unenforceability.

As I've explained it's not as simple as that because a credit agreement may be enforceable but the debt may not be enforceable because of a myriad of other reasons (in law). So the two you believe are enforceable may not be (in court), and vice versa.

I don't know enough about the three you believe are unenforceable. Is this because they've not yet produced a credit agreement, but that could be remedied further down the line (they source the agreement or reconstitute one) or is it because the actual credit agreement produced is irredeemably unenforceable (e.g. missing the prescribed terms etc)?

Debt purchasers typically pay only 10% of the face value of a debt. They can afford to take time and effort to pursue you, and also take a punt on issuing a court claim even if a debt is unenforceable since 90% go to Default Judgment (CCJ).

They are also in no rush to settle for less than you owe. A constant drip of monthly payments from thousands upon thousands of consumers is an easy and effortless way for them to have an million pound income each month. That could be why they've left you alone for the ten years you've been in a DMP.

I know you're in a rush to move on with your life but my suggestion is you read and research as much as you can so you can make an informed decision. You've been in a DMP for ten years and you say that you have only just discovered "unenforceability" which is all new to you. Maybe answer a few of the questions asked to gain a better insight to your situation before deciding you next steps.

I would definitely NOT write to PRA asking for a signed copy in case they find one.

Di

[MisterK]

Sarah, I think you have a lot more power in this situation than you appreciate. I'm sure you'll see that clearly as you get into further into this. The longer you leave it before you offer to settle, the weaker becomes the opposition.

By holding out you show your strength and would eventually be able to settle for something between 10% and 15% of the debt. By rushing into it early you will never get that kind of settlement.

But hold on. How do you know you will ever need to settle. You shouldn't in my opinion pay any attention at all to any statement that an agreement is enforceable unless it comes from Niddy. If a creditor tells you this then it carries little weight because they have a vested interest in saying that it is enforceable. If it gets anywhere near court their argument might well collapse. Not only that but even if the agreement is a good one they might not succeed because they could have made other errors with the documentation.

You don't have to establish this kind of thing at the outset and by rushing to clarify early you can weaken your own situation and reduce your chance of success.

This is very much a waiting game. It's a case of staying cool and waiting, not being pro-active but responding only when you yourself need to. Like a cat that spends a lot of time in the sun doing nothing but springs immediately into action when a mouse happens by. You could simply put aside the money you are saving in case you ever need to settle one that is genuinely enforceable in all respects. The further that is in the future the lower the cost will be to you.

Be careful also that when settling it has to be done correctly or someone in the future can come back for more. Also that a "settlement" does not generally remove defaults from your CRA files any earlier as I understand it, although I'm sure others will correct me if I'm wrong about that.

And never follow up on a CCA that doesn't look good. Just send it to Niddy and if UE then you need do absolutely nothing.

[Still Waving]

Originally posted by Spud View Post

"You mention not wanting to have to send Income/expenditure details to any of the creditors? What I would advise is that you do not send any financial details to any creditors if you were following the U/E route - You are not obliged to and it wouldn't be sensible to so on that score there would be nothing to be worried about."


But what about those that are enforeable? If I am self managed, surely they'll want a financial statement to see what I can afford to pay? And if I'm paying less on account of ceasing payments to the UE debts, these guys will want more.

Very good advice in the two posts preceding this one, take some time to digest it.

On this particular point - if you are determined to continue paying some of your creditors, you could continue to pay the same amounts as before. If they challenge this, don't send I&E details but merely assert that your income has not changed. You do not make them aware that you are not paying all of your creditors, so they will have no reason to expect more.

[Joanna Connolly Solicitors]

• Bank Of Scotland then Lloyds TSB
• Credit card
• Approx 2001
• £6k
• Last full payment approx Oct 2007. Negotiated installment paid up to date.
• Arrangement via a DMC
• Defaulted. Now dropped off credit file.
• PRA Group

I requested the CCA and this debt was deemed UE by PRA Group. A few months later, I received a signed credit agreement. Not sure if that now makes this enforceable??

update 25th June 18: Niddy has seen the signed agreement and says that this one is enforceable. I’ll try and settle it, any experience with PRA Group anyone??

Did Lloyds issue/serve you with a compliant Default Notice (s87) before the account was terminated? If so did it also enclose the necessary leaflet from the OFT or FCA (depending on what year it defaulted)?

Have you been receiving annual Notice of Sum in Arrears (s86) from Lloyds since the account was defaulted in 2007(?) and also from PRA since they purchased the account?

Did you receive a Notice of Assignment from both Lloyds and PRA at the time of the assignment?

Was there PPI on this credit card account?

I would send a SAR/GDPR request to Lloyds to get the full history of this debt.

Di

[Joanna Connolly Solicitors]

• Barclaycard
• Credit card
• Approx 2006
• £500
• Last full payment approx Oct 2007. Negotiated installment paid up to date.
• Arrangement via a DMC
• Defaulted since 2013. On credit file.
• PRA Group

I requested the CCA and this debt was deemed UE by PRA Group. Last PARTIAL settlement offer from them was £335. I have read elsewhere that "partial" will always be the word used on your credit file, regardless of weather F&F was agreed...?

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

[Joanna Connolly Solicitors]

• MBNA
• Credit card
• Approx 2000
• £1,200
• Last full payment approx Oct 2007. Negotiated installment paid up to date.
• Arrangement via a DMC
• Defaulted. Now dropped off credit file.
• Link Financial

I requested the CCA and received a signed credit agreement. Last settlement offer from them was £780.

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

[Joanna Connolly Solicitors]

• Halifax
• Credit card
• Approx 2002
• £1,100
• Last full payment approx Oct 2007. Negotiated installment paid up to date.
• Arrangement via a DMC
• Defaulted. Now dropped off credit file.
• Cabot Financial

I requested the CCA and this debt was deemed UE by Cabot.

When did you send Cabot your s 77-79 CCA Request?

Did their response say the debt was unenforceable or did they say that they didn't have the documentation in their possession so would have to ask the original creditor for the paperwork which would make the debt unenforceable in the meantime (but that could change)?

Who owns this debt? Is it Cabot Financial Ltd, or Cabot Financial (Europe) Ltd or Cabot Financial (UK) Ltd. It matters.

Di

[Joanna Connolly Solicitors]

• Royal Bank of Scotland
• Loan
• Jan 2007
• £17K
• Last full payment approx Oct 2007. Negotiated installment paid up to date.
• Arrangement via a DMC
• Defaulted. Now dropped off credit file.
• AIC

I requested the CCA and received a "True Copy", no signed photocopy. I believe this one to be enforceable...?

update 25th June: Niddy reckons this one is unenforceable, no signed agreement. They say in their letter they are only obliged to send a true copy - is there a template I can use to ask again? I may fall into an actual faint if this whoppa is UE!

Update 27th June: Never-In-Doubt reckons this one is UE as there is no signed agreement. Is the "Missing prescribed terms" template appropriate here? I'm confused as they refer in their letter to the doc they sent being a "True Copy" and the template asks for a true copy. Pic of letter attached along with a response from RBS saying that AIC will be collecting the debt "on their behalf". Is this a nice way of saying they have sold the debt and no longer have anything to do with it?
Diana Mayhew

If the agreement is unenforceable why would you write to them to ask for it again? That could only prompt them to try harder which is exactly what you don't want them to do!

In fact why send them anything at this stage? Wait until AIC write to you. They (AIC) will be acting as the agent for RBS, they have not purchased the debt.

Di

[SarahSarah]

If the agreement is unenforceable why would you write to them to ask for it again? That could only prompt them to try harder which is exactly what you don't want them to do!

In fact why send them anything at this stage? Wait until AIC write to you. They (AIC) will be acting as the agent for RBS, they have not purchased the debt.

Di

Just getting my head around all this, thought I'd need some kind of confirmation that it was UE from them. I now understand it's a waiting game.

But, and please do point me in the direction of a thread that explains this if I'm being annoying, if a letter saying "it's currently unenforceable because we have not YET received the paperwork from the lender" doesn't confirm unenforeability but does buy you some time, what happens if they do produce something that proves it's enforceable? I negotiate a payment plan or settlement or end up in court??

Basically, reading the accounts I have so far, I will definitely cancel the DMP and wait for them all to come to me. And I won't settle any for now, but I still don't fully understand the risks of this strategy. I like the statement you made earlier that I am not disputing that I owe the money, I am disputing the legal ownership of the debt (or something like that!).

And I'm still confused about the 6 years statute barred if I'll be in contact with them...?? I'm sorry, I know this must be frustrating when you've been over it a thousand times before, feel free to direct me to relevant threads I haven't yet found.

I have taken the day off and spent the morning sorting through my paperwork so will answer the questions relating to the individual debts very shortly.

Diana Mayhew One more question, how do you feel about the letter RBS sent, which I attached to the post, saying they only need to provide a "True copy" ? Do you also feel that this one is currently unenforceable?

RBS wrote to me in Feb 2015 to advise that AIC are the collection agent who would now deal with anything relating to the debt on our behalf.

[cymruambyth]

Don’t worry about asking questions as knowledge is power and ensures that you don’t make any errors.

If there is no acknowledgement of a debt for 6 years it becomes statute barred, though there is some debate as to whether this is from when a default notice is issued. Just to confuse the situation, a debt drops off your credit record 6 years after it is defaulted even if you have been paying money towards it.

You never tell them that a debt is UE because this gives them a chance to rectify the situation. A lot of debt management is a game of chess or poker, provided that you have the correct guidance.

[SarahSarah]

When did you send Cabot your s 77-79 CCA Request?

Did their response say the debt was unenforceable or did they say that they didn't have the documentation in their possession so would have to ask the original creditor for the paperwork which would make the debt unenforceable in the meantime (but that could change)?

Who owns this debt? Is it Cabot Financial Ltd, or Cabot Financial (Europe) Ltd or Cabot Financial (UK) Ltd. It matters.

Di

It's "Cabot Financial (Europe) Ltd, an appointed representative of Cabot Credit Management Group Ltd".

I sent the CCA Request in June 2017, received the holding letter that same month then in September 2017 a letter saying they have not managed to get the requested info within the time period, account is on hold until they can comply with the request. It then goes on to say the account is currently unenforceable but you are still obliged to repay the outstanding balance.

I then tried to settle for £300 and they countered with £712. I didn't respond. Small repayments have continued via the DMP.

Last corresponence dated March 18 is a statment of the account, these have been sent twice yearly since 2013. I seem to be missing any paperwork between 2007 when started the DMP and 2013. I know at some point during that time, the debt was being collected by Blair, Oliver & Scott. I don't have any letters advising of a switch in collector. It could be that my DMP were advised, I do recall receiving a statement once from an entirely new provider and I wasn't sure what it was for. The DMP confirmed it was a debt that had swapped hands. I can't recall which it was but I don't have a letter from anyone, including the DMP, about it.

[SarahSarah]

If there is no acknowledgement of a debt for 6 years it becomes statute barred, though there is some debate as to whether this is from when a default notice is issued. Just to confuse the situation, a debt drops off your credit record 6 years after it is defaulted even if you have been paying money towards it.

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.

[MisterK]

But, and please do point me in the direction of a thread that explains this if I'm being annoying, if a letter saying "it's currently unenforceable because we have not YET received the paperwork from the lender" doesn't confirm unenforeability but does buy you some time, what happens if they do produce something that proves it's enforceable? I negotiate a payment plan or settlement or end up in court??

It's not so much that the creditor will be able to prove it's enforceable at that point in time as that is supposed to be a matter for a judge as I understand things. What would happen is that if you sent the new information (agreement) to Niddy and he declared it enforceable then that would simply up the chances that you would have to make a settlement. But it's not by any means certain at that stage because of all the other things that can go wrong and which Di Mayhew will check out for you. She might ask you to send a SAR to the creditor for example so as to check that other necessary documentation like default notices etc are in order.

If it doesn't look good and by that I mean that if it were decided that you would lose in the unlikely event that it went to court, then you still might not want to make at an offer at that stage. They might not issue a claim for example, in which case why would you offer to settle then. Wait until they do issue a claim or simply wait until they seriously threaten to do that if you'd rather. Even if they did issue a claim that doesn't mean it would go to court by a long way. As I understand it most creditors would far rather agree a settlement with you than let it go to court and win against you. That's because depending on your circumstances a judge might well determine a repayment scheme which is very good for you and very bad for the creditor. Perhaps they wouldn't want to take that risk and that could put you in a strong position if you were at that stage interested in a cash settlement. As it is likely to be many months or even years before this situation came about you would probably have saved enough by carrying out your strategy for this not to bother you too much.

As you don't own a house you have a little less to worry about anyway in the very unlikely event that it went to court. Remember also that in the very worst case you would avoid a CCJ simply by settling up within a couple of weeks or so at the very end. But it's before this point in time that you would conduct your negotiation for a full and final settlement, correctly worded so that the issue is done and dusted permanently. I believe that most CCJ's are the result of no defence being offered and you wouldn't be one of those.

Hope that helps, I'm not speaking with the authority that DM would be able to bring to it, the above is simply my understanding of how things work and I hope you find it useful Sarah.