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CCA Request and the 12 Days?

mabseyuk asked:

Hi,

I sent the £1 and CCA request back on the 4th of May. It’s been nearly 4 weeks now, and not heard anything from the DCA. Bearing in mind the letter gives them 12 days to reply, is there anything more I should be sending them now in terms of a follow up letter?

Thanks

J

Tiggy replied:

The debt is unenforceable now, so unless they find and produce the agreement they should not start proceedings against you, nothing really you can do now.

Hopefully, they never find it and the debt becomes statute barred.

mabseyuk replied:

Thanks and Ouch, so what next, if they find it, they can effectively start court proceedings? The issue is, if it goes that far, and I have no chance of winning, I would prefer to just start a payment plan or would I still be offered that if I lost in court, because I’m not going to have the money to clear any alleged debt if I end up loosing this thing?

Thanks

J

Tiggy replied:

If they did start proceedings you would have to look at what they have provided in terms of proof along with the agreement. You can then decide to fight it or agree an out of Court settlement along with a payment plan, these are known as a Tomlin Order.

Spudulika replied:

I’m in the same boat as you sent my CCA request about the same time.

I’ve been doing more research on these CCA requests. It looks to me like the 12 day period is effectively meaningless. They can’t proceed until they supply the CCA requested documents, but they can proceed once they have supplied them regardless of how long it takes them to do it. If I’m wrong about that please someone correct me.

What form of documents they have to supply seems to depend on when the account was started, if it was before 2007 they have to get hold of original documents but for accounts started after that they can supply documents reconstituted from microfilm sources. The one saving grace is that apparently, original creditors, once they have sold on the debt, don’t really want to be bothered about trawling through old records for copies of documents. So it depends on how efficient and cooperative the OC is with the DCA’s request.

As they say on this site so often, do nothing for now and shout up when you hear anything, it might be months.

Tiggy replied:

There is a limit on their time to commence proceedings, it’s 6 years from default in E&W or 5 years in Scotland.

Spudulika replied:

Can’t they just keep the six year time limit rolling over by writing you a new letter? My understanding is that there must have been no payments or communications for a period of 6 six years (England &Wales). Effectively they have to forget to write to you and you musn’t communicate with them?

mabseyuk replied:

So with everything said and done, I need to understand what the point of the 3 Letter process is at all? All they seem to do is delay the DCA until you eventually get threatened with Court action. Why not just skip the 3 Letters all together and begin letter 1 with the CCA Request, which if they produce and you know you are going to loose should it go to court, you simply then set-up a payment plan with he DCA and save a lot of pain?

I’m confused by the whole process now as it all boils down to the fact as to whether the credit card company can be bothered to supply the information to the DCA as to whether I am going to win or loose in court?

The 3 Letters seem to stall them, but I’m trying to understand whether ultimately it all comes down to this final CCA Request as to whether I am going to win or loose, so why not ask for that from the off?

J

Tiggy replied:

Spudulika, this is what the Limitations Act 1980 says:

“5 Time limit for actions founded on simple contract.”

An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.

So what is the cause of action, Courts accept the default as being the cause of action, but if you make any payment or acknowledge the debt after default it will go on the date of last payment or date of any acknowledgement on your behalf.

Them writing a letter to you is irrelevant as that is not any form of acknowledgment from yourself that money is owing.

Tiggy replied:

mabseyuk, the only true way to be ‘safe’ from proceedings is to pass the statute barred date, so the whole point is to cause as much delay as possible for as long as possible and hopefully, make them less keen to start proceedings.

DCA’s buy these debts in their thousands, they like easy compliant people who will roll over and pay up, they’re not so keen on those that will put up a fight as that costs them more money to collect.

Faljay replied:

Hi,

There is one other point. If the agreement is pre-April 8 2007, and they do supply a copy, it may be unenforceable due to being incorrectly made out or illegible. Many of the older agreements are either archived and may be a photocopy of a photocopy and so on, so they are unreadable, or destroyed.

If they do not produce a copy of the agreement, as mentioned, it is unenforceable and the court cannot make an enforcement order as per:

1.8 This guidance note, published pursuant to Section 4 of the Consumer Credit Act 1974 (‘the Act’), provides guidance to businesses in relation to their duties (under regulated consumer credit and consumer hire agreements) to give debtors and hirers copy documents and statements of account on request under Sections 77(1), 78(1) and 79(1) of the Act. The Act refers to the duty of the creditor and owner under these sections as being one to give information and this guidance will refer to requests made under these sections as ‘information requests’.

1.9 The sanction under the Act for non-compliance with an information request is unenforceability of the credit or hire agreement for so long as the creditor or owner fails to comply with his duty.

3 Where there is such a failure, the courts have no discretion to allow enforcement.

They have also broken the Consumer Credit Act and the terms of their Consumer Credit Licence by taking this to court.

The CC Act 1974 clearly states they have a duty NOT to mislead you or take advantage of your lack of knowledge, they cannot take you to court or even threaten to take you to court if they know the debt is unenforceable.


Take Care.

😀

mabseyuk replied:

Unfortunately mine was 2008. To be honest, I’m trying to avoid the court route, but will summarise where I am:

This was for a Alleged Barclaycard Debt from 2008
Initially this was Put over the Mercer’s.
I ignored them, and they sent me a letter offering a reduction in the alleged debt if I pay off in Full

It was then passed over to DCA Number 1, and I found this site.
I sent them a 3 Copyright Letter Process, they didn’t respond to the letters, so Put them in Estoppel.

All went quite for 4 weeks

Then get a letter from DCA 2 saying they have bought the interest of the debt from DCA 1
I send them a letter from this sight, explaining account is in Serious Dispute with DCA 1 and to pass it back to them

DCA 2 then said they acknowledge no dispute and demand I pay up.

I get a letter from DCA2 saying they are trying to get the information from Barclaycard.

Then I get another letter saying please ignore that letter, it was sent in error.

Then I get a letter from DCA 2, and inside is a copy of the T&C’s from Barclaycard, and a copy of a old statement, and they said that completes my request for the information.

Then I get a letter from there Solicitors, saying I need to contact DCA 2 for payment or they will start Court Proceedings.

I send Solicitors the Pre-Conduct Letter.

Then I get another letter from DCA 2, asking for £1, and I submit the CCA Request as per guidance here.

And that’s where I am at. They said if it goes to court, they will add interest and court costs.

Thanks

J

Faljay replied:

Hi,

No matter the date of the agreement, if they cannot or do not supply the copy agreement then it becomes and remains, Unenforceable, unless or until such times they do provide the copy agreement. And as you requested the agreement under pre-action protocol civil procedure rules, they should not have requested the £1.00 admin fee as this was following their threat of legal action.

As this is 2008 they may use a reconstituted agreement, which does not have to contain any signatures – go figure, and may be comprised of parts of the original agreement and an up-to-date version. However, the fact these are debt collectors who have allegedly purchased the account, then they must have a valid, legally executed Deed of Assignment as per Section 74 [amended] of the Law of Property Act 1925, to have any legal rights to pursue, let alone tale you to court.

Take Care.

😀