The solicitors sound like they are trying it on. It is up to the judge what track it is allocated too, that's why you fill in allocation questionaires!

They should point out to the Solicitors that it hasn't been allocated to a track yet and that their letter will be forwarded to the court as to their frustrating of the proceedings.

Sections 127(3)-(5) are still fully in force for agreements made before April 2007, as per the Consumer Credit Act 2006, Schedule 3, Section 11.

If the agreement doesn't have borrower's signature on a document containing the prescribed terms etc. then the court has no discretion in pre April 2007 agreements, it cannot enforce it by law.

I don't see why they need anything clarifying.

OK, This is third hand information. I have spoken with a Legal Clerk who works at Liverpool CC, she has told me that “all the Civil Judges in the Liverpool CC have been instructed to stay all claims involving disputes in relation to the enforceability of cca’s issued before 6 April 2007.”

 

 

Enforcing Credit Agreements (Implementation date: 6 April 2007)

Section 127 of the 1974 Act restricts the court's discretion to enforce an agreement that does not contain all the prescribed terms or has not been signed by the borrower or where the appropriate cancellation statements and notices have not been given. As a result relatively minor technical breaches of the rules can result in unenforceability. However, by virtue of the Act, the court will have the power to determine in its discretion whether agreements are enforceable regardless of the

breach.

 

http://www.mcgrigors.com/pdfdocs/Consumer%20Credit%20Act%202006.pdf

Sections 127(3)-(5) are still fully in force for agreements made before April 2007, as per the Consumer Credit Act 2006, Schedule 3, Section 11.

If the agreement doesn't have borrower's signature on a document containing the prescribed terms etc. then the court has no discretion in pre April 2007 agreements, it cannot enforce it by law.

I don't see why they need anything clarifying.

Did this claim get allocated to the small claims track?

The idea is to get it struck out before allocation, that is when the CPR rules work more... once it goes to the small claims track that is when any rules go the Judge feels like, as it's not worth the courts time to drag it out.

You have to act fast!

Puts the litigant in person at a disadvantage though so it stinks from that perspective but then maybe it is balanced by the no costs usually associated with the small claims track if everyone has behaved reasonably.

By "all the ducks" you mean the prescribed terms and debtors signature, though, right? For example, if the terms about use of personal data under the DPA aren't "in a row", that wouldn't result in unenforceability. (Although an argument would ensue that they can't process your data, hopefully)

 

Also, s.127(1) still endues, so any agreement that was unenforceable pre-April 2007 would still be unenforceable post-April 2007 if that was the case. s.127(3) only relating to irredeemable unenforceability, is my point.

 

Sections 127(3)-(5) are still fully in force for agreements made before April 2007, here is the bit in the Consumer Credit Act 2006, Schedule 3, Section 11:

"11 The repeal by this Act of—

(a) the words “(subject to subsections (3) and (4))” in subsection (1) of section 127 of the 1974 Act,

(b) subsections (3) to (5) of that section, and

© the words “or 127(3)” in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act."

Section 127(1) is still there now for all agreements but that doesn't offer much protection really. Judge will just say "so you had the card and spent the money?" and you say "yes" then he makes the order to enforce it.

My understanding is that these are 'no true copy cases' so very relevant to most of us I think

 

GK

What can they do if there is no evidence of any agreement though I wonder?

Accept the bank's claim at face value that is was enforceable and contained the prescribed terms and conditions and was signed by the debtor?

Yes the banks are trustworthy, they would't do immoral things like pay the directors millions in bonuses after making huge losses, whilst sponging off the taxpayer for losing their gambling bets, etc. The only argument is do they come before or after arms dealers for being the most immoral people on earth.

Isn't there already evidence that a large proportion of the banks agreements that do exist don't comply with the CCA 1974 for them to be enforceable? Isn't this enough evidence to throw out accepting no evidence of an agreement on it's own?

I can't believe we are even discussing such a thing!

Edit:

What's to stop the bank just saying "nope, no agreement here, but it was enforceable" for every case if this gets anywhere? Why would they bother producing it ever for any claim. If the banks succeed in this it would be like declaring them God!

The average person associates a DCA with a Bailiff. The letters threatening a "home visit" are designed to cause them psychological harm and fear.

A lot of people here are aware that DCAs have no right to trespass on one's property but I think 50% of people believe they are no different from court bailiffs and that they are coming to take their stuff! Vulnerable people.

At the worst, people will fear other members of their family being made aware of their indebtedness etc.

The whole thing is to cause fear, stress and psychological torment to the alleged debter, if this isn't a menacing demand for money, what is?

Any creditor should have to make an appointment with the debtors express approval before visiting them in their home and such approval can never be implied by a lack of response.

What do other's think? Shouldn't the OFT act to stop a lot of misery out there?

I am sorry to double post but I think this issue is the number 1 issue to ever come up in this forum, so I will. I look forward to any comments.

I am not sure what is going on in the Manchester case.

I was under the impression the Judge in Chester that has sent some test cases to London did not even get involved in the enforceability issue as none of the bank's barristers contested that they were not enforceable and the issue was only if they can record a default on a credit file if it was not enforceable and APR calculations.

Are they trying to say if there is no agreement at all that nobody knows if they had the prescribed conditions/signature etc? Surely this is madness to try and argue something about a contract which nobody has a true copy of?

Maybe it would be fun to get a transcript of the Chester hearing, if there were 50+ cases being heard at it I am sure the tape recorder would have been running. It would nice to see in transcript the banker's barristers agreeing no agreement = unenforceable (agreements before April 2007 of course).

Anyone involved in the Chester case fancy pm-ing me a claim number so I can try get it?

I am not sure what is going on in the Manchester case.

I was under the impression the Judge in Chester that has sent some test cases to London did not even get involved in the enforceability issue as none of the bank's barristers contested that they were not enforceable and the issue was only if they can record a default on a credit file if it was not enforceable and APR calculations.

Are they trying to say if there is no agreement at all that nobody knows if they had the prescribed conditions/signature etc? Surely this is madness to try and argue something about a contract which nobody has a true copy of?

Maybe it would be fun to get a transcript of the Chester hearing, if there were 50+ cases being heard at it I am sure the tape recorder would have been running. It would nice to see in transcript the banker's barristers agreeing no agreement = unenforceable (agreements before April 2007 of course).

Anyone involved in the Chester case fancy pm-ing me a claim number so I can try get it?