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Legality/enforceability of the various responses to a letter before claim

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  • Legality/enforceability of the various responses to a letter before claim

    Hi, I got a letter before claim a few days ago, this is in respect of an old 2006 debt (loan) but one where payments have been made until recently, I was on a DMP but decided to go it alone and then due to some financial pressure have missed payments. The debt was with Halifax but has been sold at least once and is with Idem.

    My question is about how safe it is to tick box C. I have a suspicion they will have a correct CCA, I think this is a personal loan completed in-branch, but would prefer to test this out for enforceability, however if they do have the CCA I would want to move straight on to offering an arrangement to pay. I've no CCJ's at present and my most recent default is about 5 years ago and although my credit file perhaps looks a bit ropey with arrears at present, the lack of defaults hopefully means it could repair quite nicely with a more sensible spell and I don't want a CCJ to mess that up. If they do have the CCA, and for some reason their paperwork seems very confident in general, then I don't want to have provoked them into being as harsh as they can be. I'd want to be able to say 'OK, the game's up, I will cooperate' and us both to proceed nicely.

    On the other hand, can I use the form to offer to pay but ALSO ask for the CCA, and then later tell them it's unenforceable and I'm not paying, or by ticking 'I owe this debt' am I creating a situation where they won't need the CCA, I just legally admitted I owe the debt?

    Thanks,

    -linnite

  • #2
    You haven't said who has sent you the Letter Before Claim was this Idem or their Solicitor?

    It would help if you could set out the information in a Diary format.
    Start here
    https://www.all-about-debt.co.uk/for...3228#post43228
    • Type of account (credit card/loan)
    • Date commenced (ideally before Apr 2007)
    • Approx balance
    • Date last paid (approximate date you last made a FULL payment)
    • Are you on arrangement or not paying
    • Status (default/in arrears/up-to-date)
    • Account owner (who is writing to you, a DCA or the lender)

    It seems you haven't sent (Recorded Delivery) for a CCA S77/78 costs a £1 (Postal Order) this needs to be sent to the Current Creditor (who is writing to you)
    You state IDEM but this is a large group of Associated Companies can you be specific about who the Current Creditor is (it will be on the Notice of Assignment) mostly likely different from IDEM who are writing to you.

    You will almost certainly need a SAR from Halifax which under the new GDPR rules is free.

    What is important is the timing of submissions.
    1/ The Letter Before Claim needs to be returned before the end of the 30 Days (from the date of the Letter)
    2/ The CCA request needs to be sent first and then the Letter Before Claim - Stating outstanding S 77/78 request

    3/ Ask for the SAR say couple of weeks after sending the S.77/78 that way the information will include any correspondence between IDEM and Halifax

    There are many reasons for why a Debt is Unenforcible not just the CCA.

    Was or is there any PPI on this Loan?
    What was the purpose of the Loan ? to pay off existing borrowing? Or other reason.

    Comment


    • #3
      Thank you Roger I actually do have a diary but have ummed and aaahed about it for absolutely ages, without actually getting going, in fact you have replied to me on there, thanks for all your replies and patience, this letter might be the one that makes me get going.

      I'll update the relevant diary entry anyway.

      Is there much experience on the forum of handling these letters before claim and what tends to happen if you tick this box or that one?

      Comment


      • #4
        Originally posted by linnite View Post
        Thank you Roger I actually do have a diary but have ummed and aaahed about it for absolutely ages, without actually getting going, in fact you have replied to me on there, thanks for all your replies and patience, this letter might be the one that makes me get going.

        I'll update the relevant diary entry anyway.

        Is there much experience on the forum of handling these letters before claim and what tends to happen if you tick this box or that one?
        Well the name that springs to mind is Di!
        But quite simply lets marshal the information CCA, Current Creditor SAR (with Assignments, Notices etc..) PPI because all of this will enable a balanced review and judgment of this particular Debt.
        The CCA whilst outstanding renders the debt UE so we take advantage of that to respond to the Letter Of Claim. The GDPR is 30 days not the 40 of the SAR. Di professional can be contacted (first contact is free) when you have marshalled the paper work! Should that be necessary.

        Comment


        • #5
          Hi

          You say you do have a diary, can you provide a link to it, please?

          Comment


          • #6
            Originally posted by Roger View Post

            Well the name that springs to mind is Di!

            . . . Di professional can be contacted (first contact is free) when you have marshalled the paper work! Should that be necessary.

            Hello

            Don't let a Letter Before Claim unsettle you. And don't tick any boxes until the facts are known!

            I'll take a peek at your Diary for the backstory but if you haven't already sent a s 77-79 CCA Request then now would be a good time (once the situation has been analysed). Don't do anything yet.

            What is the date on the LBC so the deadline can be established? That's the first thing needed.

            Di
            Legal Disclaimer

            I am a Litigation Executive at Joanna Connolly Solicitors a firm which specialises in consumer credit. If you need to contact me you can send a message by clicking on my username or by emailing me at di@joannaconnollysolicitors.co.uk or by telephoning 0330 053 9340. Our initial advice is always free.

            Any posts I make on the AAD Consumer Forum are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide on the forum is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk

            Comment


            • #7
              Originally posted by Still Waving View Post

              You say you do have a diary, can you provide a link to it, please?

              Here you go > https://www.all-about-debt.co.uk/for...innite-s-diary

              And here's the relevant updated post >

              Originally posted by linnite View Post
              Re: linnite's diary

              4. Halifax CC, £6500 originally now £3200 paid down via DMP, taken out Nov 2006 default date Dec 08, Blair Oliver and Scott administer, again don't think this has been sold?

              Mar 2018: This was sold to Idem. Very little correspondence from them. Now £2,372.

              June 2018: Received letter before action.

              Di
              Legal Disclaimer

              I am a Litigation Executive at Joanna Connolly Solicitors a firm which specialises in consumer credit. If you need to contact me you can send a message by clicking on my username or by emailing me at di@joannaconnollysolicitors.co.uk or by telephoning 0330 053 9340. Our initial advice is always free.

              Any posts I make on the AAD Consumer Forum are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide on the forum is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk

              Comment


              • #8
                Thanks Di.

                I had difficulty finding my own diary a few days ago.

                Comment


                • #9
                  Originally posted by Diana Mayhew View Post


                  Hello

                  Don't let a Letter Before Claim unsettle you. And don't tick any boxes until the facts are known!

                  I'll take a peek at your Diary for the backstory but if you haven't already sent a s 77-79 CCA Request then now would be a good time (once the situation has been analysed). Don't do anything yet.

                  What is the date on the LBC so the deadline can be established? That's the first thing needed.

                  Di
                  Letter dated 5th June, landed on my doormat on the 8th. I'd better mention I have telephoned them in response, to check what was supposed to happen next. I hope I didn't say anything in that call that scuppers my chances, I certainly didn't say anything as specific as 'I acknowledge I owe this money'. I did say I planned to fill in their forms and make an offer to resume monthly payments?

                  Everyone is quite bullish about doing the enforceability route in this case, but I need to feel sure I can quickly retreat and stay on positive terms with them if they come up with an enforceable CCA. I wouldn't be able to pay off a CCJ so I'd be stuck with it for 6 years.

                  That said I am now reminded this is a credit card not a loan and is pre April 2007.

                  Comment


                  • #10
                    Originally posted by linnite View Post

                    Letter dated 5th June, landed on my doormat on the 8th. I'd better mention I have telephoned them in response, to check what was supposed to happen next. I hope I didn't say anything in that call that scuppers my chances, I certainly didn't say anything as specific as 'I acknowledge I owe this money'. I did say I planned to fill in their forms and make an offer to resume monthly payments?
                    Everyone is quite bullish about doing the enforceability route in this case, but I need to feel sure I can quickly retreat and stay on positive terms with them if they come up with an enforceable CCA. I wouldn't be able to pay off a CCJ so I'd be stuck with it for 6 years.
                    That said I am now reminded this is a credit card not a loan and is pre April 2007.
                    5th June plus 30 days equals Thursday 5th July 2018. This is when the LBC needs to be in their hands! So you could post a reply (recorded deliver) say Tuesday 3rd July at the latest.
                    If you haven't yet sent off for CCA I suggest you do this say Wednesday 20th June (Recorded Delivery enclosing Postal Order for £1). Should be in their hands say 22nd June ( that's exactly 14 days before the LBC needs to be in their hands) After 14 days without the CCA its UE. So you can honestly Fill in the LBC "outstanding CCA request" and nothing more.



                    We have ALL been where you are and thought the same way. I followed the National Debt guidance lines etc.. etc.. The various Charitable advice etc..
                    In my own case overnight the valued Creditor becomes the impoverished Debtor. Bullish is an apt description of how you then become treated!

                    DCA's backed by investors. They buy BAD Debts as an Investment. So they are Investing in you and curiously as a good Creditor!!!!!.
                    They are Not a Charity neither are they doing a Public Service. The Debt has been written Off and the Banks enjoy Tax benefits etc.. During the Banking Crisis the Banks were bailed out by the Tax payer (that's you and I) your tax paying for these bad debts and the same time being harassed (legally) by DCA for the same bad debts!

                    Churchill famous comment on those that wanted to negotiate with Hitler "you can't negotiated with a Tiger whilst your Head is in Its Mouth!"
                    There is no such thing as being on positive terms with DCA and how are you going to retreat when they are mauling over what the pitiful small amount of spare income you now have?

                    The Consumer (that's you and I) Law is for Our protection and benefit. Failures here on the part of the Creditors is Uneforcibilty in one form or another.

                    The AAD way is the Consumer Law and Silence. Everything in writing. No phone Calls which admit perhaps inadvertently the Debt.
                    How do you know that this debt is enforcible OR that they have the legal right to sue for the debt?

                    Comment


                    • #11
                      Hi

                      I suspect I answered your post on Debt Camels blog, if so I am glad you are here and nowhere else.

                      My Halifax loan was unenforceable because it was incorrectly executed and therefore there was nothing they could do. I think at the time i told them what it was flawed but not how and I didnít hear from them again. The debt is now SB

                      To try and give you support, when I started my journey , I was told most of my agreements were enforceable yet only 1 out of over 20 actually tried to take me to court and they failed thanks to Di and Joanna Connolly so it goes to show there is a lot more than Ďjustí a s77-79 request.

                      Comment


                      • #12
                        Thank you. I did post something very similar on Debt Camel, because I visit there about some complaints I have in with the FOS. I'm sure here is the more appropriate for enforceability, etc, matters.

                        Comment


                        • #13
                          Yes, here is a much better place to talk UE. Yes I think we are bullish but sometimes you have to be. IF the telephone call you made was recorded it could be seen as an admission with regard SB. That is why, personally I almost never communicate on the phone. But whatís done is done and itís moving on. Iím not sure when you stopped paying, if you have but getting the cca off is important.

                          Remember from now until a CCJ is a long way and there are probably many opportunities to set up repayments before judgement if you need to.

                          Comment


                          • #14
                            Can I just clarify

                            In post 1 you say this is a loan but from your diary you said it was a credit card. The difference might be crucial.

                            In either case, did you have ppi, this might have been asked before.

                            Comment


                            • #15
                              If statute barring is all I might have scuppered, then I won't worry, as I am 5 years 8 months away from SB anyway. So long as through my words I can't have rendered an unenforceable contract, enforceable, and that sounds pretty unlikely as I type it, then I should be OK.

                              I've drafted a CCA letter, I guess I should send it then?

                              Comment

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