DoingMyBest's Unenforceability Diary

[DoingMyBest]

Hi, all.

In 2017, due to various circumstances (including divorce + putting money into a business that hasn’t as yet brought in an income), I defaulted on 7 credit cards and my main bank account. I’d got a (fixed-term, one-off) job for a year, paid an absolute fortune in compound interest, and done my absolute best to keep a passable credit rating by making every payment on time and in full, but couldn’t borrow at a less punitive interest rate anywhere, so finally succumbed. I’m currently on a very low income, and have no assets.

I was on a Token Payment Plan with Stepchange for about 18 months, which expired. In October 2019 I wrote asking for the original CCA’s, and 3 of them came back as “currently unenforceable”.

Summarising the remaining 5:

*Natwest/PRA is for a bank overdraft, which they are claiming means I don’t need a CCA. Reading the AAD forums suggests this is not the case.

* MBNA/PRA, sent only statements and no agreement, which as I understand it means it is currently unenforceable.

* The remaining 3, Lloyds/Cabot, BOS/Cabot, and Halifax/Moorcroft, sent printouts of online application forms, and I’ll send them to Niddy, who has kindly offered to check their wording, once I get the green light. As they were taken out fairly recently, I suspect they are probably enforceable, in which case I will have to offer them token payments.

The most pressing issues are that Cabot are threatening legal action, and Moorcroft are threatening to send someone to my house. The Cabot thread here suggests there is an issue with them being unauthorised to proceed with court action, but I think that will involve actually going to court to defend myself?

I live in Scotland, in case it affects the legal position (I know Statute Barred is a year shorter, for instance).

Full details in posts below, though from memory so the dates might be slightly out. Thanks for reading, and for any advice!

DMB

[DoingMyBest]

NatWest/PRA

• Type of account: overdraft

• Date commenced: 1986

• Approx balance: £1,500

• Date last paid (approximate date you last made a FULL payment): 2018

• Are you on arrangement or not paying: Not currently paying

• Status (default/in arrears/up-to-date): Default

• Account owner (who is writing to you, a DCA or the lender or debt purchaser): Purchaser

[DoingMyBest]

MBNA/PRA

• Type of account: credit card

• Date commenced: 2015

• Approx balance: £2,000

• Date last paid (approximate date you last made a FULL payment): 2017

• Are you on arrangement or not paying: Not currently paying

• Status (default/in arrears/up-to-date): Default

• Account owner (who is writing to you, a DCA or the lender or debt purchaser): Purchaser

[DoingMyBest]

Lloyds/Cabot

• Type of account: credit card

• Date commenced: 2015

• Approx balance: £1,500

• Date last paid (approximate date you last made a FULL payment): 2017

• Are you on arrangement or not paying: Not currently paying

• Status (default/in arrears/up-to-date): Default

• Account owner (who is writing to you, a DCA or the lender or debt purchaser): Purchaser

[DoingMyBest]

BOS/Cabot

• Type of account: credit card

• Date commenced: 2015

• Approx balance: £1,300

• Date last paid (approximate date you last made a FULL payment): 2017

• Are you on arrangement or not paying: Not currently paying

• Status (default/in arrears/up-to-date): Default

• Account owner (who is writing to you, a DCA or the lender or debt purchaser): Purchaser

[DoingMyBest]

Halifax/Moorcroft

• Type of account: credit card

• Date commenced: 2015

• Approx balance: £2,200

• Date last paid (approximate date you last made a FULL payment): 2017

• Are you on arrangement or not paying: Not currently paying

• Status (default/in arrears/up-to-date): Default

• Account owner (who is writing to you, a DCA or the lender or debt purchaser): DCA

[Warwick65]

No need to make excuses as to why you defaulted.

With Cabot it depends which version of Cabot is the owner. They try to hide this by saying Cabot version x is managing . If it is Cabot financial uk then they are not authorised. Yes indeed Scottish law is different so for example while Jo and Di can offer advice I am not sure if Jo can represent you.

Did you live in Scotland when you took the loans/ cards out?

[DoingMyBest]

Hi Warwick65,

> No need to make excuses as to why you defaulted.

Thanks for your understanding, and I appreciate this being such a supportive environment where people don’t judge. Being an open forum though, some readers might reasonably ask: “You borrowed the money, shouldn’t you repay it?” I’d reply that I have, and far more, in heavy interest over the years. At times I was falling faster than I could climb. There’s making an honest profit, and there’s usury: The loan shark credit card companies charge exorbitant rates, and raise them arbitrarily. Barclays, for instance, suddenly upped theirs by a quarter when I was well within my limit, with a perfect payment record. There was a laughable “option” to “decline” it by repaying £10k in a fortnight. Only one type of character makes offers you can’t refuse. So, at the risk of kicking off a much larger debate, I don’t feel morally obliged to pay these gangsters any more money.

> With Cabot it depends which version of Cabot is the owner. They try to hide this by saying Cabot version x is managing . If it is Cabot financial uk then they are not authorised.

It says "Cabot Financial (Europe) Limited is an Appointed Representative of Cabot Credit Management Group Limited which is authorised and regulated by the Financial Conduct Authority".

> Did you live in Scotland when you took the loans/ cards out?

The cards, yes, but the NatWest account I opened back in 1986 in England. I'd be amazed if they still have the paperwork :-)

Thanks again,

DMB

[Warwick65]

Hi
Well to answer your first question

I can not say 'no one obtains credit with the sole idea of not paying it back'. There are clearly some who do but they are the very few and the stuff of newspaper headlines and not the stuff of "truth'. It is like saying one homeless man is an alcoholic therefore all are (although to be fair, if I was homeless I think I would want to blot it all out and not being able to afford the good stuff would be on the White Lightning, which I have just seen hasn't been on sale for 11 years). So I would rather treat everyone as a person who has found themselves in an unfortunate position. I am just that sort of person; I had substantial debts and found my income seriously reduced so I could not service them. I know of someone else, who was going merrily along and then the credit crunch came.

I just noticed your comment about Barclays, as far as I understand it now, if they up your interest rate you can refuse and then set up a repayment plan to pay off the borrowing. Of course you lose the card which can make life more difficult. If you can prove that I suspect there are people who might like to know about it.

Diana Mayhew Never-In-Doubt As for the debts, if I am correct, the cards are covered by Scottish Law but the Natwest overdraft is covered by English , maybe Di or Niddy can confirm

[DoingMyBest]

Hi Warwick65,

Sorry to hear you've gone through this too. I hope you're on an even keel now.

Regarding Barclays, this was roughly 8 years or so ago, and if I'd challenged it then, I fear my whole fragile credit system would have come down. I managed to struggle on for a long time after, just about functioning financially, and hoping things would turn a corner. But that extra interest was another anchor to drag. Ironically it has bitten them back, because 2 of the 3 unenforceable cards were my Barclays ones (dating back to the 90s)! I might not have defaulted, and slowly paid them back. Sorry it's too late to be of use to others here.

> if I am correct, the cards are covered by Scottish Law but the Natwest overdraft is covered by English

Thanks, if it's relevant, I moved to Scotland 20 years ago,

Thanks,

DMB

[Joanna Connolly Solicitors]

NatWest/PRA

• Type of account: overdraft

• Date commenced: 1986

• Approx balance: £1,500

• Date last paid (approximate date you last made a FULL payment): 2018

• Are you on arrangement or not paying: Not currently paying

• Status (default/in arrears/up-to-date): Default

• Account owner (who is writing to you, a DCA or the lender or debt purchaser): Purchaser

Overdrafts are covered by s78 CCA so send PRA a formal CCA Request including the £1 statutory fee for this ex-NatWest overdraft from 1986.

PRA may tell you that overdrafts aren't covered but they'd be wrong if they did, as Jo explains here >

The claim against our clients in this case was for monies owing under a personal Current Account Overdraft. We lost at first instance before a District Judge in Peterborough County Court and appealed the decision before HHJ Walden-Smith sitting at Cambridge County Court.

The Appeal was successful yesterday. This is an important case because it confirms that consumers using the unenforceability provisions of the Consumer Credit Act 1974 can successfully defend claims for personal Current Account Overdrafts in court. In this instant case the Appeal court found the personal Current Account Overdraft agreement to be unenforceable pursuant to the Consumer Credit Act because of lack of evidence of compliance with the requirements of the OFT determination.

It was also accepted that Creditors must comply with S 78 Consumer Credit Act 1974 requests relating to personal Current Account Overdrafts, not just credit cards and loans. In this case the Appeal court did find that MFS Portfolio Ltd had complied with the S 78 Consumer Credit Act request. If they hadn’t complied with the statutory request then the personal Current Account Overdraft would have been unenforceable pursuant to s.78 (6) (a) Consumer Credit Act , which is contrary to the position creditors normally take.

The court also positively approved of the principle established in a European case ruling we put before the court that it is for the creditor to prove statutory compliance. The court did not appeove of the District Judge’s earlier decision in the lower court that our client not recalling something somehow reversed the burden of proof onto our clients and away from the Claimant.

Di

[DoingMyBest]

Hi Di,

Many thanks for your advice here.

> send PRA a formal CCA Request

Already did! Sorry I'd not clearly expressed that above. They didn't supply the documents, but claimed they didn't need to. As you established, they do. Your precedent was established in English & Welsh law though, whereas I live in Scotland; Presumably if they press it, I'll have to read up on the cases and defend myself in court? Are they likely to follow the precedent or come to a different conclusion?

Also I was in England when I opened the account, if that affects things?

Thanks again,

DMB

[DoingMyBest]

[Also posted in the Cabot thread]

Hi all,

Cabot have sent me a letter saying they are "referring" my account to Nolans Solicitors, who "will want to speak to you within the next seven days where they will review your situation and help you to arrange the most suitable solution for you based on your circumstances".

DMB

[Timewilltell]

They will probably write to you at this stage it is no more than another will you pay request, if they were serious they’d say it a letter before claim and would have to provide you with a questionnaire form, others may be able to elaborate.
given I have been dealing with Cabot for a number of years now and have had solicitors letters which have come to nothing, I suspect it’s to make you feel scared, but stay strong and the great guys and girls on here will keep you safe.

[DoingMyBest]

Hi Timewilltell,

Thanks for the reassurance and advice! Nolans sent a letter yesterday, saying they "require settlement in full, or acceptable instalment proposals, within fourteen days... In the event that you fail to respond, then court proceedings may be raised against you." And threatening to add the fees. I think the key word here is "may". Importantly, they name their clients as Cabot Financial UK Limited, who, the Cabot thread on this forum explains, are unauthorised by the FCA.

DMB