Written by John Kruse, one of the leading experts on Bailiff Law, this consumer friendly guide is essential reading for anyone who comes into contact with a bailiff.
The book is easy to understand and clearly explains the rights
a bailiff has, and also what they cannot do when collecting debts and repossessing goods etc.
1. CCJ against me after determination
2. I then filed a motion to set aside as the claim amount included unlawful collection charges.
3. In the interim I asked the creditor for the credit agreement.
4. All I received was an application with ZERO mention of Ts & Cs - these were provided on a separate sheet WITHOUT my signature (ie they could have come from anywhere).
5. This fact was reported by me to the court as additional evidence - and copied to the creditor - who rather limply replied that they would defend it is in fact a credit agreement.
Jump forward to court day:
1. The judge summarised my defense perfectly - called the creditor's witness statement 'weak' in countering my quotes of the CCA 1974 act.
2. The judge has now adjourned the case to allow the claimant FURTHER time to counter my claims that the debt is unenforceable without the prescribed terms.
Incidentally, at the hearing the creditor agreed to remove the collection charge.
NOW THEN...
If the boot was on the other foot I don't think the judge would have given ME any more time to further my cause!
In any event, Restons/HFC were woefully unprepared so I don't think they can strengthen their defense.
HOWEVER,
The judge was of the mind that as I MORALLY ACCEPTED THE DEBT - a court COULD let this CCJ stand.
Now I know the wording of the act which precludes a court from legally enforcing a debt.
I think the judge liked me - I say again he called their defense 'weak' (and this would have been reported back to the claimant!) and he only sounded out a word of caution to me that if the creditor COULD prove the agreement then I would be liable for their cost from this point.
So my question to you all is thus:
Surely a moral acceptance of debt cannot trump consumer credit law - and would I now best be armed with the ability to quote cases where such CCJs have been thrown out?
I wouldn't want to cross the judge - but it appears to me the law is clear in this instance - none of the terms are not there.
I don't want him sanctioning a CCJ and ignoring this facet of credit law - and my argument is unwavering due to the shoddy application form that has been submitted - and the claimant has had plenty of opportunities to prove otherwise!
In my humble opinion a court is there to enforce the law as it stands, not to offer a view whether that law is morally justified.
Barclays:WON!!! It took four months but was totally worth it!
Cabot: I'm still waiting for an enforcable agreement, more than a year after requesting it. Go on, Uncle Ken, take me to court if you dare. You know you want to!
Elephant.co.uk: VICTORY - they admitted there was no debt!
Ashbourne Management (gym membership): Finally got my default removed and out-of-court settlement; I'm not finished with them yet!
<--- If I've been helpful please remember the scales
You cannot be penalised for breaking the spirit of the law nor can you be guilty of breaking the morallity of the law.
the Wilson V FCT sets out that in the event the credit agreement failed to include prescribed terms it is unenforcable abnd that ruling came from the Lords Of Appeal in Ordinary the highest judges in the country
Heres the text of the House of lords ruling in wilson
if things get difficult and the judge is looking to enforce an unenforcable agreement refer him to it, he is bound to follow it as it sets a binding precedent
I don't want to appear bullish to a judge - but why he couldnt have thrown the claimant's application then and there astonishes me.
If I had a 'weak' defense I would have been thrown out in 5 minutes!
They had their chance to defend - and actually broke the law in sending me an application. I've said that I'd report them to trading standards (and will when I get 5 minutes to breath!).
Yes - well worded in that the judge is there to uphold the law - and not act wishy washy over my moral acceptance.
This 'moral obligation' business on the part of the debtor crops up time and again particularly when it comes to legal matters but it's not surprising considering English Law historically puts more importance on money and property than people, which is why tax evaders and fraudsters can get put away for longer than rapists and some murderers [eg drink drivers].
But this moral issue of having to repay debts no matter what always preys on the mind of people, partic. those with debt problems, because I believe the vast majority of ordinary souls are honest 'can't payers' rather than 'won't payers,' and so are easy prey for these 'moral' arguments. I admit to being one of them.
But if you stand back and look at the bigger picture, you see something else. This argument of 'moral obligation' to have to repay debt is a lazy soundbite for the media [the BBC is no exeption to it] and a gift to DCA's. I mean you've had the money and spent it, so you should pay it back, right?
In the good old days that may have been true, but not any longer, when money itself has ben relegated in the global market to nothing more than a commodity itself. The banks have played the game for years dishing out money left right and centre and not just to Joe Bloggs in the street, but on a much larger scale to multi-nationals and whole countries. Personal credit/debt really is a small part of any bank's ledger. But when it comes to scare tactics....who's the soft touch? Us of course.
Someone has already mentioned that banks don't lose out on defaulted debt- it's already built into their interest rates. It's 9/10 a matter of what level of profit is going to be made, not how much is lost. On top of that remember banks, in the case of credit cards:
1] have levied a percentage of your purchase from the retailer everytime you used your card;
2] even if you only used your CC for cash advances, you will have paid a handling charge to obtain that cash, and a high interest rate on it once you've got it;
3] only a minority of people ever pay their CC bills off entirely every month; if you are here and been in problems you are obviously not one of them, and so the interest you have paid over the years when your credit accounts were active are likely to have covered your debt and more [at one time I was paying over 500GBP a month in interest];
4] if a credit account does go t*ts up, after six months the bank can sell on the debt and write it off on their ledgers against tax.
I would say the banks and the weasels that hang around them like DCA's NEVER lose money.
This is of course no excuse to rack up debts with no intention of ever repaying them but that, I believe, is only practised by a small minority of people who will always be around, just like other fraudsters. But for you and me to feel a 'moral obligation' to pay back what we can't afford? No way.
The banks threw that moral obligation argument away when they did away with the concept of personal banking years ago, and dived in with a cash giveaway free for all without even bothering to check what their legal obligations were.
There used to be an unwritten contract between bank sand the public, one of trust.
That no longer exists. I was a good, by the book customer of Barclays for twenty five years, and the Co-Operative for fifteen. As soon as I had problems in 2000 due to illness and divorce, I was unceremoniously defaulted, within months shoved off to a godforsaken DCA and in the case of Barclays even given a CCJ for my troubles [for an O/D of less than a grand that I'd talked to them endlessly about paying off at a rate I could afford.]
Anyway good God I've rabbited on enough. But do I have any 'moral obligation' to repay my debts now? To be honest, no I don't.
This debt has now moved on to ANOTHER company -- the claimant details thus amended in the court case -- and still no enforceable agreement - just the same old application!
When this goes to trial (still no date yet - this is now 18 months on!) I really do only have the ONE argument ... no agreement - no debt - and that is the LAW.
Hi, just trawling through and thought I'd add my twopennyworth - I am involved in a case with an unenforceable agreement too, and at the set aside hearing for the CCJ the bank had got, they brought up the moral argument, and the judge looked to me for comments. I said that I believed we were there to look at the legal, not the moral argument. The Judge was already pretty much on my side, and he just nodded in agreement.
There's a good quote somewhere by the gut who wrote the Consumer Credit Act, which I'm going to use at the final trial - can't find my copy offhand, but it says something about him having included section 127 'because if companies can't be bothered to ensure their Agreements contain the correct terms, they deserve to have their agreements found unenforceable'.
You can't argue with that, can you!
I also have been mulling over the moral argument, because I too am someone who used to be very law-abiding, and would hate not to take responsibility for my debts - but did these companies think about the moral argument against setting charges which were far in excess of their actual costs? Of refusing to accept payment arrangements which people could afford? Of using the law to get a CCJ and then demanding forthwith payment on a debt for which they had no agreement (in my case), and then going for a charge on my house? And of in some cases actually going for forced sales and making people homeless? Moral argument? Bah, humbug...........
There's a good quote somewhere by the gut who wrote the Consumer Credit Act, which I'm going to use at the final trial - can't find my copy offhand
Here, from Francis Bennion :
Doc. No. 2003.061 JPN008L 167 JPN (2003) 773
Any footnotes are shown at the bottom of each page
Consumer Credit Act 1974 s 127(3)
As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County TrustLtd [2003] UKHL 40, [2003] 4 All ER 97.
Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.
I always think of this quote when it comes to the moral aspect.
.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-
“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”
Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site
Sirensinger:
I also have been mulling over the moral argument, because I too am someone who used to be very law-abiding, and would hate not to take responsibility for my debts - but did these companies think about the moral argument against setting charges which were far in excess of their actual costs? Of refusing to accept payment arrangements which people could afford? Of using the law to get a CCJ and then demanding forthwith payment on a debt for which they had no agreement (in my case), and then going for a charge on my house? And of in some cases actually going for forced sales and making people homeless? Moral argument? Bah, humbug...........
Good luck
Skem: Too true amongst many others, like harrassment by phone at work as well as home when 99% of debtors are already at an extremely stressful time? How much illness has that eventually caused many of us and if you want to be economically mercenary about it [and lets face it that's exactly what the banks are] resultant lost days at work etc reducing the nations economic output etc etc I could go on.
The banks and DCA's operate completely without morals. If backed into a corner [i.e. know the are on a complete loser] they will play the reasonability card but only then.
Like I said in my other post a couple of days ago, this moral obligation concept was once an unwritten contract binding on both the customer AND THE BANK. The banks threw that away when 15-20 years ago they moved completely away from the concept of personal banking to the pursuit of easy billions by loaning as much money as they could left right and centre, even to people they knew wouldn't have a hope in hell of ever paying them back.
That's now coming back to bite them on the bottom, big time. Are the general public- whether with debt problems or not- shedding any tears for them? Of course not. Can they, the banks, now rely on a moral obligation argument to be repaid, when they have ABSOLUTELY behaved without any moral structure of their own for so long, with total impunity? Certainly not and they can shove their moral obligation argument where the sun don't shine on a rainy day.
For a long time, I've had the moral Vs legality of paying, recently, one creditor Northern Rock are taking legal action to obtain a charging order on my home.
I've informed them of my medical issues which has fallen on deaf ears, that combined with what someone on this forum said, "what right does a DCA have to harass / intimidate / threaten me when they only purchased the debt for pennies?
I borrowed from a legit lender, it's that lender I owe the money to, not some 2pence DCA, and for that reason, if I can legally refuse to pay them, I will.
Someone said, if you borrowed from Paul, what right has Paul to pass that debt onto Fred, and for Fred to come and harass you? in my book Fred has no right, I'll pay Paul who I borrowed from, and no one else.
Moral issue seems to be the thing at the moment. Creditors may claim that a debtor is morally responsible for the debt, but do creditors accept they also have a moral responsibility to prevent a debtor's debt increasing.
A couple of of years ago I contacted my credit card provider as I was concerned about meeting my payments and was close to my credit limit.
So I would avoid going over that limit if I missed a payment and would be charged their solution was to increase my credit limit by £1500.
Then a week later I received from them credit card cheques, with a suggest that I write a cheque to myself and pay into my current account to cover my mortgage, rent, school fees or additional expenses.
Would this be describe as responsible lending (or moral).
Moral issue seems to be the thing at the moment. Creditors may claim that a debtor is morally responsible for the debt, but do creditors accept they also have a moral responsibility to prevent a debtor's debt increasing.
A couple of of years ago I contacted my credit card provider as I was concerned about meeting my payments and was close to my credit limit.
So I would avoid going over that limit if I missed a payment and would be charged their solution was to increase my credit limit by £1500.
Then a week later I received from them credit card cheques, with a suggest that I write a cheque to myself and pay into my current account to cover my mortgage, rent, school fees or additional expenses.
Would this be describe as responsible lending (or moral).
Good point up until about 18 mnts ago i was getting these on a weekly basis, they all went in the shredder.
Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site
I made a formal complaint to them they acknowledged "their response was not suitable" but they pointed out I had not made any loss financially as I had not increased the amount due to them.
After making a complaint to the OFT with regard to them being a ‘fit and proper person’ to hold a consumer credit licence under the 1974 Act, they could not have been more helpful, they offered to freeze interest on the account, refunded some late payment charges and arrange a payment plan that was suitable to me.
Fortunately managed to clear that debt and closed account - still get mailings from them inviting me to open a new account.
Gave approval to OFT to use my details but never heard anything further.
Think the majority of financial companies in the UK need to ask themselves about their own morals before going into a court and raising the morals of debtors.
I wonder if the chairman and CEOs of these companies joined CAG when everything started to go pear shaped for them.
Moral Dilemma:
Think the majority of financial companies in the UK need to ask themselves about their own morals before going into a court and raising the morals of debtors.
Huh, so right.
When I hit financial difficulties in 2000 one of my cc accounts was with cap one with a good few grand on it. it was defaulted and I got into a token repayment arrangement with them.
I remember not long after this reading an interview with a Cap One main exec explaining how they had a very 'progressive' approach to ccredit card debt. They expected a high default rate but it wasn't a problem for it because the costs/resultant tax relief opportunities etc were all factored into their business model and they never lost money and as such, were prepared to reoffer credit facilities quickly again to defaulters.
Sure enough in a relatively short period of time [couple of years] i was being offered by them credit repair credit card facilities despite owing them 5K already and paying it off a quid a month.
Now I'm sure Cap One weren't alone in the crop of US banks that came across the pond in the nineties [like MBNA, CitiBank etc] with 'progressive' lending policies in order to tap into the vast debt potential of the UK but they were probably the biggest.
To be fair to Cap One they are probably the most kosher of those US cowboys to set up shop here [which isn't saying a lot considering the competition lol] but to say there is any 'morality' in their banking practises? They and all the other banks have managed to operate within the law [and at times that's questionable] but, have NO moral structure to their organisation.
Why they should expect the public to behave 'morally' towards debt when they blatantly never have themselves is unbelievable barefaced tosh but one they've managed to beat the public with for a long time.
That time I feel is now up. This idea of moral responsibility is a two way street and one the banks- every single one of them- stopped travelling down a long time ago.
Anyway I CCA requested Cap One a few weeks ago. Got a laughable attempt to come up with the goods from them. When I get a chance I'll start a thread up on that and the other ones for general info purposes.
I agree with several posts. The county court is a court of LAW, not a court of MORALS. If you seek a court of morals, seek a religious court.
That said the law does recognise the concept of 'unjust enrichment', i.e. the fact that a debtor has had the money and so should repay. The argument was put forward by the QC in the case of Diamond v Lowell [2000] in the House of Lords.
In giving his judgment, Lord Hoffman said
"Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law:"
In short, if creditors can't be bothered (or more likely were too greedy) and Parliament has said tough!, it is not the job of the courts to do it for them.
Moral Debt V CCJ Enforcement
as the claim amount included unlawful collection charges.
Reply With Quote
Originally Posted by Sirensinger
