Query about Credit Card debt

[Grumpy_Git]

Hi,

So due to circumstance I defaulted on Credit Card, no option really. They sold it to Debt Collector.

I requested a CCA from debt collector, who sent me a photocopy of T&C's (not signed) and last couple of statements. They sent the T&C's first with letter stating they were waiting on further information and that they have currently deemed it unenforceable. Then second with statement.

CC was taken out back in 2001.

Question I have is this debt enforceable? My understanding is in order for it to be enforceable it needs to be compliant with

Section 127 (3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)

So as there is no signed agreement provided can they take court action?

I plan to use the time to save a bit and make a F&F offer but need the space to do that.

Thanks for advice

[SteveB]

Hi
It is complicated

But essentially if they can not produce a S78 response then the account is UE UNTIL they can comply with the S78 request - this can be a recon and doesn't need a signature

HOWEVER

Because it was taken out prior to April 2007 they need to demonstrate to a court that on the balance of probabilities you did sign an agreement with all the prescribed terms . The easiest way is to provide a signed copy and of course if you say you didn't sign anything and they show you did, that might be seen a perjury . I believe generally without a signed copy they rarely win although it is not 100%

Finally yes they can take court action and if you do not defend it they can get a default judgement so make sure mail redirects are in place etc if you have moved.

maybe a few details would help
Name of Creditor
Date of Default
Date last full payment made
Date last payment by you
Who now owns it

Approx value (to the nearest 1000 is probably enough)

Hope that helps

[Grumpy_Git]

xxx

[Grumpy_Git]

xxx

[SteveB]

As I said it is complicated. They need to show that on the balance of probabilities a signed copy with all the prescribed terms did exist. For example it might have been lost by fire but I think they would have an upwards struggle to do this.

This is what S127 (3) says'The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).'


It says was signed not that they have to produce it- but as I said it is more often than not that without a signed copy and a positive assertion that you did not sign it, they are in trouble. Can you remember how you took it out- back then I used to get letters offering me credit cards which were essentially application forms.

[Grumpy_Git]

Honestly I can't remember I believe it was online but could have been in branch.

How do I tell if cca is compliant?

[Still Waving]

Can't make sense of a thread with half of it deleted.

[SteveB]

I have done a bit of digging and this might help- stolen from a commercial website

The prescribed terms for the purposes of section 61 which are set out in Schedule 6 of the Consumer Credit Act (Agreements) Regulations 1983 states that:

(1)A regulated agreement is not properly executed unless—

(a) a document in the prescribed form, itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and
(c) The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

In addition the following must be contained: –

1. a) A term stating the credit limit or the manner in which it will be determined or that there is no credit limit,
2. b) A term stating the rate of any interest on the credit to be provided under the agreement and
3. c) A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—
4. Number of repayments;
   2. Amount of repayments;
   3. Frequency and timing of repayments;
   4. Dates of repayments;
   5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.
   Therefore if a borrower has not signed the agreement containing all the prescribed terms, the agreement will not be enforceable without an order of the court and section 127(3) requires the court to dismiss the application for an enforcement order.

Remember these apply to loans and credit cards so for example the number of repayments may not be applicable to a credit card

[Grumpy_Git]

There is no credit limit on T&C's, additionally the T&Cs are so small I can't read them.

Nothing else