I got one of those a few months ago. If you read it carefully it is full of "might" and "may" and "could consider". Its a bucket full of empty words masquerading as threats. It also says don't contact them, contact MBNA. I ignored it and nothing happened. I assume it is another weak attempt to pursuade you to pay up.

Isn't that all anyone ever gets from Cap 1. I wonder what response you would get to something along the lines of "If you want paying then you need to be more pro-active!" Sorry, scrub that, I tried it and got the same response. I'm still curious as to what Cap 1 expect to achieve by stone walling, perhaps they don't want to get paid. I tried everything except the CPR 31.16, even a polite, would you like to work with me to get to the bottom of this and reach an agreement. My next missive, when I can be bothered to send it (their approach doesn't exactly encourage you to make much effort) will be something along the lines of, contact me again when you want to make some progress and leave it at that. Would be interested in hearing from anyone who has got beyond this impasse.

Much respect upto I read it all too, took me 3 1/2 months but a worthwhile read. If this debacle ever gets resolved (and the world hasn't ended:D) I think it should be offered to the BBC as a new soap......its got everything. Flirting, fighting, a villain (meagain - no offence ) even a cyborg! (eat your heart out eastenders!!!!). Its worth sticking at although you get confused as the plot changes and the legislation gets updated/ amended. Gave me a good grounding for battle. Thanks to all that have contributed over the years and the endless knowledge of the many who give insight

Wilson v First County Trust [2000] EWCA Civ 278 (3 November 2000) Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007) Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000) Walker vs SPPl-e.pdf

Hi, Try digging around in this. BAILII - Case Law Search The case law search is quite powerful if you enter something like "unenforcible" or "credit agreement". Or enter "Wilson", "Hurstanger" or "SPPL". If you dig around on the site you will find others, there's no shortage. Good hunting

I offer them the opportunity to speak to my legal advisor (the OH - who is in the legal business), there is rarely anyone on the phone by the time I pass it over. More recently, we let them listen to the telly. The record is 5 min 15 sec (listening to Harry Potter -prisoner of Azkaban). I did tell them to write to me, in the past, but they didn't take any notice. I do like the look of DDs letter, may well play with this pretty soon - nice one DD

Technology is cussed stuff

Sometimes it does. Don't ask me why Mine appears and disappears at random. All adds to the excitement of posting :grin:

If you click on your own user name then click user CP. Scroll down to edit signature then type away.

I think, typically, that, where an absent or unenforcible agreement is the source of contention then the consumer would cite s142 with reference to s127(3) - on pre-Apr 2007 "agreements". S142 permits the court to make adetermination whereas s127 (3) limits the court's powers where s61 is breached. In terms of case law, Wilson & Anor v Hurstanger, Wilson v FCT, Walker v SPPL. If you go to British and Irish Legal Information Institute and use the case law search you should be able to come up with a pile of relevant citations, needs a bit of reading, though. I struggle to see the difference. The penalty charges are applied by enforcing the penalty charge clause in the agreement. The interest relies on the interest rate clause, the default notice uses the default clause. All the above are conditions of the agreement. If there is no agreement then they cannot enforce. To state otherwise is to suggest that the CCC can enforce terms without an agreement. If you have a BC card could Lloyds charge you interest? of course not, it is reliant on the existence of the executed, compliant agreement. The terms of the agreement are based on the act, the terms exist because the act requires them to do so. In the absence of the agreement or the act behind it there is no enforcement. How many of the terms of any agreement would be enforcible iof the aft was not there to support the enforcement - none, of course. However, the act cannot be enforced without the agreement. What s78 (6) states is that the agreement cannot be enforced. This is by anyone by any means or it would be qualified either within the structure of the act or via case law. There is no case law to support selective enforcement where an agreement is defective. The act is not qualified. Therefore, it is for the creditor to offer a case for selecteive enforcement, not the consumer to present a notional defence. Where the creditor has tried they have failed or are presently being challenged.

Hi IGNM, As I understand it, the Chester referrals (two of them anyway) are intended to make a determination on this. The two cases (due Oct 09) relate to injunctions served by consumers to remove CRA defaults where an agreement is deemed unenforcible. The arguement is that to allow CRA defaults is enforcement. If these cases are found for the consumer then there is a logic that any act based on the terms of an agreement is enforcement and is prohibited where the agreement is defective. Perhaps these cases are the olive branch for arguing that "enforcement", as referred in the act, constitutes any act derived from the terms of the agreement. Also, the act refers to: 6) If the creditor under an agreement fails to comply with subsection (1)— (a) he is not entitled, while the default continues, to enforce the agreement; So the act prohibits enforcement by the creditor as opposed to enforcement by the court.

I'm curious about this, the relevant filing system I can cope with although I think that this has been successfully challenged in the past in relation to agreements in micro fishe. But an agreement, with all the personal information that it incorporates must be personal "Wherein I am the data subject" and all that? Seems pretty compelling to me

I think all of the CMCs are regulated by the MoJ. Some of them are due to find out the downside of this regulation fairly soon, if not already.

So, am I right in thinking that this section: 56. Antecedent negotiations. — (1) In this Act “antecedent negotiations ” means any negotiations with the debtor or hirer— (a) conducted by the creditor or owner in relation to the making of any regulated agreement, or (b) conducted by a credit-broker in relation to goods sold or proposed to be sold by the credit-broker to the creditor before forming the subject-matter of a debtor-creditor-supplier agreement within section 12(a), or © conducted by the supplier in relation to a transaction financed or proposed to be financed by a debtor-creditor-supplier agreement within section 12(b) or ©, and “negotiator ” means the person by whom negotiations are so conducted with the debtor or hirer. (2) Negotiations with the debtor in a case falling within subsection (1)(b) or © shall be deemed to be conducted by the negotiator in the capacity of agent of the creditor as well as in his actual capacity. (3) An agreement is void if, and to the extent that, it purports in relation to an actual or prospective regulated agreement— (a) to provide that a person acting as, or on behalf of, a negotiator is to be treated as the agent of the debtor or hirer, or (b) to relieve a person from liability for acts or omissions of any person acting as, or on behalf of, a negotiator. (4) For the purposes of this Act, antecedent negotiations shall be taken to begin when the negotiator and the debtor or hirer first enter into communication (including communication by advertisement), and to include any representations made by the negotiator to the debtor or hirer and any other dealings between them. Coupled with s59 is a death knell to any application purporting to be an agreement? Thanks

Thanks samanthasquig, What defines acceptance and is there any case law? I'm particularly looking for failed cases where an agreement (acceptance) is declared not so. I believe that an application, which is clearly so based upon its content, is pre-contractual. To use your reference, I see this as an invitation to treat. I can see this is a significant grey area but would like to use such an arguement to declare an application unenforcible on the basis of it failing to fulfil some basic criteria for an agreement. Appreciate your thoughts

Hi PW, As I read the regs. The interest rate is a prescribed term - lack or error of renders the agreement unenforcible. APR is a required term with some lattitude and lack of or error renders enforcible on the order of the court. The regs changed in 2005, when is your agreement? Just my interpretation. I understand you have some experience with s59. Wondered if you would share with me as I'm trying to get some understanding of how the courts interpret this para. Cheers

I can't see that, I'm sorry. If the credit token becomes the agreement then it lacks PTs (or am I just being daft). If you apply for a CCA under s77-79 and in response to this the creditor sends an application form where there are clauses indicating that the document does not constitute a closed agreement, then, under s172, this is your agreement. If the agreement/ application form does not cite the credit token as constituent to the agreement then it cannot be constituent to the document. In any case the agreements regulations state that sigs and PTs must be within the agreement document, as does s60. The signing of the credit token does not alter the content of the application. The executed agreement must be a closed bargain. If, after the fact, the creditor proffers a pre-contractual document as the agreement but, within this document there are open considerations which permit the creditor to withdraw but does not offer the same lattitude to the borrower then this falls within s59 and the qualifying regulations since it seeks to bind the consumer to a future agreement, and is voided accordingly, and rightly so. I'm curious as to how you see the signing of the credit token having bearing on the agreement since, in essence, it would form no direct part of the agreement. Disagree with me, please. If I'm to rely on this arguement in court I would sooner argue the merits of the case here where the risks are less. I agree that s127 is a stronger arguement and is well supported in case law. The situation I want to explore is where a document is clearly an application form (it says so at the top), has open clauses permitting the creditor to conduct further enquiry prior to a lending decision (clearly pre-contractual) but purports to bind the consumer (it states this) and is signed by the consumer whilst carrying the necessary PTs. In this situation one could not argue s127 as the document is sufficiently compliant. The only arguement is that s59 would void this document prior to the execution of it as an agreement.

An official censure!!!!!!!! Woo hoo My first one

Sorry if I'm being dim but where are you refering to with regard to the "if any" statement. I would agree but whilst an executed agreement must be a regulated agreement a regulated agreement is not, necessarily, an executed agreement. An executed agreement must be in writing or the references to distinbguising from the background media would be meaningless.

Thanks Underdog, I've read this clause many times and wondered why it didn't seem to be getting the airplay I would have expected, bearing in mind the number of CCA requests that seem to be responded with a signed application form. I thought there might be a different interpretation that I was missing. I don't suppose you can recall who won with this and if they were plaintiff or defendant? The quotes are very informative. Thanks again

In theory, you could claim charges and possibly interest too, since they are both contractual. No contract, no enforcement. However, I'm not sure that anyone has done this successfully. You could issue an MCOL claim for these at relatively low cost. As I say, I'm not sure this has been done. Perhaps someone more experienced will give a more enlightened view. I suppose that you could write to them offering consolidation of costs and charges, removal of credit markers etc with a view to saving costs and see how they react (don't expect it to be received very warmly). If you go to court then the additional claim for damages plus statutory interest would increase the claim, their defence costs notwithstanding. The risk is that they will defend for all they are worth. If they pay up then there could be a sort of precedent - not a formal one as county court does not set legal precedent - but any success reported on a site like this would risk the flood gates being opened. The "unenforcible agreement" debacle risks costing the CCCs a fortune, add refund of interest and charges and you have potential bankrupcy. You might arrive in court to be faced with a full legal team etc etc. Hope this helps

Excellent, I'm sure I don't have to say this but don't lose that letter By communicating your personal details without authority they have breached the Data Protection Act and you can claim damages for this. If they contact you then they are in breach of the Administration of Justice Act - damages again. There is also the Protection from Harassment Act which could result in fines and imprisonment. You can serve an injunction to prevent the CCC from sharing your data - N266, I believe This is typical but they can't ignore the courts. Without an agreement they can do nothing (and they know this) but will posture to see if you will pay up.

Ouch!!!!

I did......to my eternal shame;-)

Response to the court, I hope Not the drivel above