bispers are you after a letter that says you failed to send me a copy of credit agreement, account in default etc?

WILSON & ANR.- and -HURSTANGER LTD

Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

In Wilson v Robertsons (London) Ltd ([2005] EWHC 1425, paragraph 45 - I laughed at the comment that "Indeed Mrs Wilson, who appears to be something of an authority on pawnbroking, ......" Had to remind myself it was judge making the comment.

With regard to Next this thread might be worth reading. It also has a link to services charge (interest)

http://www.consumeractiongroup.co.uk/forum/store-cards/69695-next-directory-covered-cca-2.html?highlight=Next+directory

Subscribing, printing and reading!

Hi

 

The reason why Mrs Wilson paid the £6,900 was because the 1st instance judge had declared the agreement enforceable and allowed her a certain time limit to pay the loan, failing which the court gave the creditor liberty to realise the security.

 

She had therefore paid this money under a ruling of the court, which was then overturned by the COA. Because the order of the 1st instance judge amounted to enforcement of the agreement (subsequently declared to be unenforceable) the creditor was ordered to return her payment + interest accrued since that 1st judgement.

 

These were special circumstances and do not set a precedent for general claims.

 

An unenforceable agreement is still valid and lawful. I have already lost a claim for reimbursement under an unenforceable agreement, where the judge ruled that any payments made according to the (still valid) terms of an unenforceable agreement are made voluntarily and therefore the creditor is entitled to retain them. 'Unenforceable' is not the same as 'void' - it simply means that a creditor cannot force you to pay!

 

I feel that any similar claim made at county court level is likely to be met with the same ruling. Any challenge to this would then have to be made on appeal - a costly and risky business! Only the COA and HL can change the law, county courts simply apply the general consensus!

 

Regards, Pam

Thank you Pam,

sorry to hear of you unsuccessful claim. Having re-read Wilson with your post in mind, it denies totally the lender any form of restitution to recover the sums via other legal means. But as you state, Wilson had not paid any monies so the debtors restitution is not mentioned.

If I may quote the whole of paragraph 72 this time

72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in cases of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

If the lender loses all rights under the agreement, as the Lords stated, how does he have any rights to retain any monies paid? Surely all monies paid were under a misapprehension that the lender was entitled to receive the monies?

Thoughts?

Hi

 

That particular case involved a pawn agreement and was subject to a particular section of the CCA that states that a creditor may not enforce the security (pawn), or the agreement. Mrs Wilson had not paid any money in the first place, so it is not the case that she received any money back, only the items she had pawned.

 

That quote does not imply that a debtor will be entitled to reclaim monies already paid under an unenforceable agreement. Such an agreement is not void or invalid - it simply means that the creditor cannot force you to pay.

 

Regards, Pam

Pam,

in the Wilson case it is true that initially Wilson did not repay any monies. She then commenced proceedings and in the first court case the judge reduced the interest and Wilson appealed to the Court of Appeal. Pending the appeal Mrs Wilson paid £6900 to redeem her car.

The court of appeal then ruled the agreement was "unenforceable" and ordered the return of the repayment of the £6,900 plus interest of £662. "The overall result was that Mrs Wilson was entitled to keep the amount of her loan, pay no interest and recover her car." This was cause for concern and the case was moved on to the House of Lords, where the Attorney General appeared on behalf of the Secretary of State for Trade and Industry.

Cherry picking outrageously one bit for the House Of Lords, I like the following;

Lord Nicholls states

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security."

Now I appreciate that the above paragraph concerns the security (her car) but the House of Lords did nothing about the court of appeal returning the monies she had paid. Would it be to large a leap to say one could recover all monies paid to an unenforceable agreement?

All comments welcome

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I prayed and found this place. Time to dish out some retribution. With a smile and a blessing of course!