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Tricky Dickie

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Posts posted by Tricky Dickie

  1. This is the arguement submitted by the barrister in a case brought by some bank or other against a Mr Mitchell in the Leeds County Court and he was defended by CMC barrister who tried to argue that the fact that the agreement did not clearly state the credit limit rendered the agreement unenforceable.

    Apparently Judge Langan reserved judgement yesterday but should hand it down in the next couple of weeks.

    Whichever way it goes the other side is very likely to appeal but if the judgement is found to be against the lender it could have very significant implications

     

    One of the prescribed terms within Schedule 6 of the Agreement Regulations is a term stating “the credit limit or the manner in which it will be determined or a statement that there is no credit limit”.It should be noted that the creditor has the option of choosing one of the three means of complying with the requirements of Schedule 6.In the present case the Claimant has most definitely not stated the credit limit within the credit agreement;it has not stated there is no credit limit.

    That leaves only the option of stating”the manner in which the credit limit will be determined”.We are concerned therefore with the manner of determination.

    It is submitted that the words” We set a credit limit and can change it.We will notify you of the limit and any changes” does not satisfy the requirements of Schedule 6.

    The statement is meaningless in relation to how the credit limit will be set.

    A determination is an ascertainment or fixing and the reference to “the manner” requires reference to some sort of methodology.

    The claimant will no doubt respond that there are millions of credit agreements which use similar rubric and that the use of such phraseology has become an industry standard.But that misses the point .Parliament was quite specific in its requirements and as was found in Wilson v First County Trust there is no room fortolerance or deviation from the strict requirements of Schedule 6.If this case opens up floodgates then so be it.

    What do the legal eagles on here think?

  2. When a creditor charges an account off, does it get tax relief on the whole amount of the loss?

     

    ie: if Sharkleys charges off £4000, do Sharkleys get to keep hold of £4000 they would otherwise have had to pay to HMRC?

     

    unless I am mistaken the 4k would go down as a loss in their profit and loss account so whatever profit they make will be reduced by 4k so they pay corporation tax on 4k less

  3. MBNA are trying to enforce an agreement and I have just found out the trial date is just over a month away.

    The "agreement" they have sent in response to pre action disclosure is an application forms with my signature on and a completely seperate set of terms and conditions which comply with the CCA( not surprising as they were probably produced last week).

    MBNA have actually confirmed in writing that they do not have the original agreement as it was copied electronically and destroyed some years ago.

    They maintain however that the original document did contain these terms and conditions on the back and have produced a witness statement from one of their employees confirming their contention is correct.

    Surely that can not stand up in court or do I need to get a witness statement from my girlfriend saying the terms and conditions were not on the back?

  4. they, hazel blears as sec of trade and industry, tried that after losing the wilson case in 2003

     

    they were told in no uncertain terms... NO

     

    you passed the law through parliment on the 31st july 1974 in order to protect the consumer... and now you have clear cases of consumers being ripped off and you wish to take the protection away?

     

    bugger off and pass a new act if you want, but the old one stays in place

    hence CCA 06 passed in april 07.

     

    I hope you are right but if you subscribe to the view that the whole political system is no more than a sham put in place by our real masters to keep the masses from finding out the truth then the possibilities are very different

  5. The financial machine (RBS) needed to hoodwink the Civil Judiciary into making a cloudy ruling, knowing that the media would publish conjecture and speculation, thus it would buy them more time to find a solution (Hi Gordon, we need 27 Billion pounds to prop up the banking sector or we are going to fall into a deeper recession, or you could rush through a couple of amendments to the Consumer Credit Act) to rectify the large volume of unenforceable contract’s that they hold.

    LIBM

     

    Just on the point made above would it be possible for the government to retrospectively amend the Consumer Credit Act or introduce some other legislation to prevent people from challenging their agreements?

  6. The financial machine (RBS) needed to hoodwink the Civil Judiciary into making a cloudy ruling, knowing that the media would publish conjecture and speculation, thus it would buy them more time to find a solution (Hi Gordon, we need 27 Billion pounds to prop up the banking sector or we are going to fall into a deeper recession, or you could rush through a couple of amendments to the Consumer Credit Act) to rectify the large volume of unenforceable contract’s that they hold.

    LIBM

     

    Spot on ,the banks and the government know the score and that if everyone challenged their agreements the banks would be in big trouble.

    If the banks ever admitted what we all know that millions of credit agreements are unenforceable they would have to write off billions of pounds on their balance sheets at a stroke and most of them would have to go bust.

    So they will drag their feet,pretend its not happening and spread lies and confusion so the general public who mostly believe the crap they are fed will think that unenforceability is an urban myth and so will carry on toing the line.

    This will go on for years and the cost of legal bills etc will pale into insignificance compared to the the implications of facing the problem directly.

    The banks are betting on keeping a lid on things until the economy comes out of recession and they can start the whole process again.

    The government is in on the act via the MoJ and FSA who have a vested interest in not controling the proliferation of CMC's who basically [problem] people by promising to eliminate their debts but have neither the resources or even the intention of delivering the service.

    There are literally thousands of these now and the numbers expand every day,you need no training or qualifications to register and in many cases when asked about regulation of them the MoJ and FSA both claim they are the responsibility of the other party.

    The result is many unhappy people and the perpetuation of the publics general perception that the possibility of having your debts wiped out is an invitation to be scammed by criminals.

    By the governments inaction this is now often the case which suits them and the banks just fine.

    It is just a great shame that other information which could prevent many people being scammed can not be posted here due to site rules.

  7. I think people need to retain a sense of perpective about having DCA 's etc chase you for money.

    Most people get scared because they don't understand how things work so when DCA's threaten to take your furniture etc people panic because they believe what they are told

    Once you undrstand that they can do nothing of the sort without going through the whole legal process then you can easily deal with them.

    I have several agreements I believe are unenforceable and I have paid nothing on them for more than 18 months despite receiving at least 6-8 phone calls a day and regular threatening letters at the start.

    I leave my phone on voicemail mode most of the time but every now and again just for a bit of amusement I speak to them and ask questions which I know they will not be able to answer which is great fun or when they ask me to answer some security questions I say 'only after you answer my security questions,after all how do I know that you are who you say you are'.

    I think of it as similar to keeping a tame Zombie in the garden shed like Shaun of the Dead.

    They have mostly given up now and moved on to more productive activities with little old ladies and disabled people.

    I guess I am luckier than some in that the lack of a credit rating is not of particular concern to me as I have decided that I can live happily without it but just the same knowledge about these things is power

  8. Well after spending a few days looking at the info and excellent analysis here, the above article is icing on the cake to me and shows it's the banks that are scrambling for reasons to be feel cheerful and the test case was a phyrric victory for them.

     

    The vast majority of us are here because we got into difficulties and I would warrant very few of us are under the illusion that we can get our debts 'written off.'

     

    The fact remains that the vast majority of these credit debts are attached to legally defective contracts and as such can quite sensibly be challenged and rejected if proven so. It's what any good business- including of course the banks themselves in the same situation- would do without any impunity.

     

    I still say as soon as you confirm your credit agreement is legally defective [or more often than not non-existent] stop paying, grit your teeth and do your six year porridge.

     

    One default is as good as ten so get them running and degrading in time. Besides you're in good company, I dare say hundreds of thousands of people have defaults now, the banks are steadily devaluing their effect everytime they issue one these days and credit reference agencies will have to adjust their credit scorings to suit- even if it has to be through a government edict- because very soon a vast part of the population will not be able to obtain even basic credit on present criteria...and then were will the much needed consumer spending revival come from?

     

    And besides who really needs loads of credit any more. I sense it's allure has diminished considerably and it's interesting getting feedback from teenagers and kids in their early twenties who seem surprisingly anti-credit cards.

     

    Some people of course need squeaky clean credit records, but I'd warrant they are a very small group these days. So take the default hit, challenge the dodgy defaults if you feel the need, don't pay the fools any more and get on with life.

     

    I agree absolutely,this case was definately the banks clutching at straws to try and find some way to discourage people from challenging their agreements which means that they have already conceded that they are not going to defend successfully the majority of their agreements particularly where they were issued before April 2007 so lets not get too discouraged by this.

    In the case conference in May at Chester County Court all the solicitors and barristers present agreed with Judge Halbert that the general principals of unenforceable agreements were well established and accepted by everyone.

    When RBS asked for this case to be one of those heard in London Halbert seemed quite surprised but agreed when the borrowers solicitors had no objection.

    There was general amusement on the part of the legal teams representing borrowers and CMC's that RBS should be trying to argue that reporting borrowers to CRA was not enforcement by another name but they also took as vindication that the lenders had already privately conceded the principles of unenforceability.

    The legal teams representing the lenders had the air of people who did not have their heart or belief in what they were doing and there was a certain amount of mickey taking by the CMC legal teams in their direction.

    One solicitor said RBS representatives had the air of a lawyer appointed to defend a rapist they knew was guilty- its a ****ty job but someones got to do it.

  9. Hello Demonbarb and welcome to the forum.

     

    I am sorry you find my comments offensive.

     

    For clarification I would point out that I am referring to the ambulance chasers who have been censured and fined for their outlandish claims by the FSA/OFT rather than the genuine CMCs out there doing good work on behalf of people who simply do not have the time or the savvy to manage their own claims.

     

    Your company must be one of those who takes a slice of the settlement figure since you do not charge any fees. You surely do not work on these cases for free???

     

    If you do please post your number.

     

     

    It is not correct to state that a company who does not charge any up front fees must necessarily take a slice of the settlement figure.

    CMC's typically work with solicitors who work on a conditional fee agreement basis (no win no fee) and when a solicitor wins a case under such an arrangement he is allowed to claim a success fee of up to 100% of his costs from the lender.

    The CMC usually has an arrangement with the solicitor that a proportion of this success fee is then paid by the solicitor to the CMC and this is where the CMC generates an income.

    In many cases the solicitor also has to pay a fee to the CMC for the privelidge of taking on the case.

    IMHO the CMC's charging the client up to 30% of whatever they manage to clear as a debt are completely immoral as they are still leaving the borrower with a substantial debt and there is no need to do that as if they are successful like they claim to be they will be raking in the success fees.

  10. Totally agree,

    Don't believe everything that you read in the newspapers!

    A shocking case of misreporting...

     

    Some of the comments at the end of the article make for interesting reading:)

     

    AC

     

    The Times article mentions Ultimate Law and its my guess the Times journo just wrote what they told him.

    It was Ultimate Law who started all the 'false stay' reports back in May after Judge Halbert called the case management conference in Chester.They really do have a knack for getting everything wrong :-o

  11. Caggers may not be too worried becasue they can appreciate that the judgement oy applies to S78. But the problem is the mis information and propaganda now being published, for example in Times Online - High Court decision on debt loophole dashes write-off hopes for thousands - Times Online

     

     

    Times are quoting Ultimate Law again- Daniella Lipsynch- what is her agenda I just can't figure it out.

    She runs a company which allegedly trains lawyers in consumer law so they can act for clients to write off debts and then keeps rubbishing the process.wtf is that all about :confused:

  12. No this is just the propaganda from RBS. Have a look at the thread on Unenforceability Cases on hold until further notice.

     

     

    Times are quoting Ultimate Law again- Daniella Lipsynch- what is her agenda I just can't figure it out.

    She runs a company which allegedly trains lawyers in consumer law so they can act for clients to write off debts and then keeps rubbishing the process.wtf is that all about :confused:

  13. DD, it actually states at the begining of the Judgement:

    "...Judge Halbert of his own motion referred this case to the Commercial Court in London with a view to its being determined by the Commercial Court as a test case."

     

    However, I would concur that your following comment may be of merit and significant:

     

     

    noted- but not sure i ever made that comment!

     

    It was me who made the comment People are always getting us confused but two dickies are better than one! :D

  14. I am not currently informed enough to comment on the specific case here (although it doesnt sound right at all and the waters have been muddied further), however, I have recently sent CCA requests to banks.

     

    What I want to know is, how does this affect people challenging the validity of their credit agreements, does it simply mean you should continue to make payments until the question of whether the agreement is enforceable has been answered? If it is enforcable, pay as normal, if it is found not to be, should payments then be withheld?

     

    If you make payments as required, they cant note your credit file with adverse information can they?

     

    If you make payments as required they can't default you or note your credit file with adverse information .

    If your agreement is not enforceable and you formally advise the lender the agreement is in dispute and you then stop paying then according to the judge in this case during the period of dispute the correct thing for the lender to do is to not to try to enforce the debt or take legal action against you.

    In the McGuffick case the agreement proved to be enforceable ( or at least all parties agreed it was enforceable-if I was McGuffick I would want it looked at again as I would have no confidence in their opinion) so I don 't how this case will affect what the conduct of a lender should be in the case of an unenforcable agreement but irrespective of the fact that the agreement is in dispute,the vast majority of lenders will issue a default notice,report you to CRA's and threaten you with legal action.Some may even take action against you regardless of whether the agreement is disputed or not :-x

  15. Mr. Handyside QC, may have been able to pull the wool over The Honourable Mr. Justice Flaux's eyes, in his opinion that the RBS is a Responsible Lender.

    That may well be the case now, bearing in mind that the Bank is 70% owned by the taxpayer.

     

    But,who in their right mind could describe this Bank as a Responsible Lender prior to its near collapse?

     

    And, why did Judge Halbert of his own motion refer this case to the Commercial Court in London?

     

    Methinks, that there is more to this than meets the eye...

     

    As for Credit Todays spin on the case;

     

    my words are too rude too write!

     

    Halbert did not refer this case to the Commercial Court of his own motion,at the case conference in Chester in May he asked ther assembled legal teams to propose cases to be heard and RBS legal representative asked for this one to be heard.There was no objection from the claimants legal representative so Halbert refered it.

    Maybe the claimants solicitor should have objected?

  16. indeed. numpty claimant, numpty claimant representative.

     

    ****ed on his own bonfire, so to speak.

     

    I wonder how carefully the copy of the alleged executed agreement sent by RBS in May had been audited for all the possible unenforceability issues and whether the claimant and his representative got sidetracked by the CRA reporting issue.

    If this is the case do they still have the opportunity to review the agreement and contest the enforceability if grounds for this are found?

  17. I think it was generally accepted that it was TD

     

    By 11 May 2009, the bank had located a copy of the agreement and wrote to MJP enclosing it and stating that recovery action would now continue.

    Mr Moran for the claimant accepted in opening that in some respects the present case was not as appropriate a test case as others might have been, for example because it is a case where, on any view (and as the claimant accepts) the agreement was valid and enforceable until 11 March 2009 (the date when the 12 day period for compliance with a demand under section 77(1) expired). Furthermore, by virtue of section 77(4) the agreement will be valid and enforceable again once the bank has provided the claimant with a signed statement of account

     

     

    If I was the borrower I would not accept that.

     

    the last sentence clearly states that further documents which have not yet been provided will be required to make the agreement enforceable which is the same position which the borrower started at before he started proceedings but because the lender says 'no problem I have the documents' and the judge says 'there you are then no need to produce them we accept that ' everyone also accepts it.

     

    Furthermore, by virtue of section 77(4) the agreement will be valid and enforceable again once the bank has provided the claimant with a signed statement of account

     

    Paragraphs 13 and 14 also clearly state that further documnetation will be required from the lender to render the agreement enforceable.

    Again if I was that borrower I would want to see that documentation not just accept assurances from the lender that they had it.

     

    1. Correspondence ensued in which MJP threatened proceedings for a declaration of unenforceability by the court if a copy of the agreement were not produced within 28 days and for an injunction if the claimant's credit rating were affected. By 11 May 2009, the bank had located a copy of the agreement and wrote to MJP enclosing it and stating that recovery action would now continue. Through inadvertence, the bank overlooked that it had not provided a signed statement of account as required by section 77(1).
       
    2. Although collection activity had recommenced, on 13 May 2009 the bank ascertained that the claimant had issued these proceedings and accordingly, collection activity ceased again. That has remained the position since, apart from one letter dated 15 May 2009 sent by Capquest by mistake. Although the bank could easily provide a signed statement of account so as to render the agreement enforceable once again under section 77(4), because the default would have been rectified, it has not done so, quite properly (as the claimant accepts) so as to ensure that there remains a lis between the parties enabling the court to determine the issues which have arisen.

    By the way what is this lis which allows the lender not to provide the signed statement of account and when the judge refers to 'a signed statement of account does he mean the signed agreement and if not then what is it and how does it relate to a section 77 request?

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