EXPERIAN... The final battle commences

[BlueSmartie]

Hi

 

I have been following your thread with great interest and agree with and applaud wholeheartedly your collective efforts to fight the injustices of the murky world of data sharing.

 

However, please, please check all your facts and authorities very carefully before embarking on any court action!

 

For example, the passage quoted from Wilson v FCT has been misinterpreted. The relevant judgement is Wilson v First County Trust Ltd [2001] EWCA Civ 633 (2 May 2001), and the actual part quoted says this:

 

 

1. The recognition that there is nothing in the 1974 Act which prevents an improperly executed regulated agreement from giving rise to contractual rights, nor which prevents the right to possess goods pawned as security passing on delivery of the goods, provides the answer, as it seems to us, to the principal argument advanced on behalf of the Secretary of State in support of his submission that there is nothing in section 127(3) of the Act which is incompatible with Convention rights. It was said, in effect, in relation to article 1 of the First Protocol, that, where there was no document signed by the debtor – or where the document signed by the debtor did not contain all the prescribed terms of the agreement – neither the agreement, nor the delivery of the pawn, conferred any enforceable rights on the creditor. So, in the present case, (so the Secretary of State submits) the creditor had no relevant "possessions" to the peaceful enjoyment of which it was entitled, or of which it was deprived by section 127(3) of the 1974 Act. In effect, the creditor – by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms – must (in the light of the provisions in sections 65(1) and 127(3) of the 1974 Act) 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;( that was the basis of the Secretary of State's argument) so there is nothing to engage the rights guaranteed by article 1 of the First Protocol. Nor, on that analysis, does the creditor have any civil rights in respect of which it is entitled to a fair and public hearing by an independent and impartial tribunal. Article 6 of the Convention is not in point.
   
2. There is, if we may say so, such an obvious unreality in treating the pawnbroker as if it were a voluntary disponor that we do not find it a matter of any surprise that the argument advanced on behalf of the Secretary of State cannot be supported. It cannot be supported because, as we have said, a proper analysis of the 1974 Act does not lead to the conclusion that a creditor under a regulated agreement who fails to obtain a document signed by the debtor which contains all the prescribed terms is without rights. The true analysis is that the agreement, and the delivery of the pawn, do confer rights on the creditor; but those rights are subject to restrictions on enforcement.
   

[finlander]

bluesmartie,

 

That would again appear to back us up. We accept that it is not a gift. But the judge is saying that the creditor has rights but they are unenforcable. If they are unenforcable then enforcment is not possible. therefore a default cannot be a pre-cursor to enforcement. IT CANNOT EXIST as NO ENFORCEMENT IS POSSIBLE.

 

The fundamentals of this is that a default is a method of enforcement or a precluder to enforcement. None of that is realsitically possible if the agreement is unenforcable. therefore it should not be registered. It would be avery twisted act that would forfiet all rights of enforcement but allow a default which is almost as destructive.

[finlander]

But regardless of that ...isnt this...

 

House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

 

the final part of the wilson saga...

[BlueSmartie]

I agree with your argument if an agreement is wholly unenforceable (i.e under s127(3) or (4) CCA), because the House of Lords ruled in Dimond v Lovell that in such a case, the debtor has no obligation to pay, but where an agreement is improperly executed (and so only enforceable on an order of the court), the obligation to pay still exists - until a court rules otherwise. So on that basis, a default in contractual terms can occur and be recorded.

 

PLease note - I am on your side, but just playing devil's advocate!

[finlander]

bluesmartie,

 

We have covered this before.. we understand that improperly executed ids not the same as undenforcable and carries a risk of enforcement. we however are only dealing with unenforcable and defaults made of unlawful charges not and i repeat not improperly executed.

 

Also I remember reading that in the house of lords appeal above the law lords recognised that the penalties for unenforcable were SO DRACONIAN that they could only have meant that the primary legislation did delibertly deny the creditor to any of the original funds as a sanction.

 

and therefore it was compatible with the HRA

[finlander]

[BlueSmartie]

But regardless of that ...isnt this...

 

House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

 

the final part of the wilson saga...

 

Yes, but this was an unenforceable agreement, not just one that was improperly executed.

 

Also, the failure of a creditor to send an identical copy of the original signed agreement in compliance with s77/78 CCA is no reliable indicator of whether or not an original properly executed and signed document ever existed (or still exists). The 'true' copy for the purposes of those sections can be a template without your name, address or signature - so you can't assert that no agreement exists purely on the basis of a s77/78 'copy'.

[finlander]

But your arguement doesn't make sense. A true copy is for the purposes of a CCA request. Great. But when they send you a signed application form with no prescribed terms then they have already shown their hand and that they don't have enforcable agreement. That is what I have. Even then if you get to court on a copy with no signatures but all the prescribed terms 'true copy' they still have to produce one with your signature at court or you have never even entered the agreement lawfully.

 

Otherwise what would be the point of an agreement?

[finlander]

and as i said .....we however are only dealing with unenforcable and defaults made of unlawful charges not and i repeat not improperly executed.

 

Unenforcable only...........not improperly executed......

[BlueSmartie]

Right, sorry, I am sidetracking! I realise that your own particular issue is related to defaults recorded during a dispute on charges, but was just concerned about case law being wrongly quoted. I'll let you get back to the front line now!

[finlander]

Its no just diputed charges. Its unenforcable CCA agreements as well. If they are unenforcable then the defaults etc must follow the same fate. The problem with improperly executed is the judge can, and has said in several cases he will, make an enfircement order if asked. It appears they are willing to do this unless you can show you have been significantly disadvantaged by the agreement (not likely).

 

Unenforcable is stone dead unenforcable. for all the reasons the law lords stated and if you have a rather grubby application form with no prescribed terms and your signature on it they are rather knackerd. I have three.........

[BlueSmartie]

But when they send you a signed application form with no prescribed terms then they have already shown their hand and that they don't have enforcable agreement.

 

Ah, but that's the problem! I have knowledge of at least 2 cases now where the creditor has failed to produce the full monty, even after endless requests from the borrower, but has nevertheless magically turned up in court with the 'reverse' of the application form, or some separate T&Cs, and where the judge, on seeing that these documents contained the prescribed terms, has allowed enforcement! All I am saying is - don't put too much faith in a defective result from a s77/78 request!

[finlander]

I will take my risks. If they want to break the law with a forgery then thats there decision and their look out. I know where the applications came from and if there was a 'reverse' side possible. Hope they remember as well or we move into criminal territory then.

[finlander]

do you have threads for these cases.... forewarned is forearmed as they say. and forearms is better than two;)

[BlueSmartie]

And are you sure there were no separate T&Cs - a leaflet/booklet or any other document with the original application form that you signed? Is there any reference at all on the application form to T&Cs?

[finlander]

if there were they wouldn't necessarly have all the prescribed terms on them. so what do we do now? application form, t&c and no prescribed terms on either......... do they claim that the prescribed terms were fully available for inspection at their branch on the top of Mt everest?

[finlander]

any threads for these cases?

[davefirewalker]

And are you sure there were no separate T&Cs - a leaflet/booklet or any other document with the original application form that you signed? Is there any reference at all on the application form to T&Cs?

 

Wilson v Hurstanger

 

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

 

"33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

 

Dave

[finlander]

Thanks Dave:)

[thecteam]

doesn't the signature of creditor and debtor have to be at the bottom of the terms and conditions to also make it legal.

signing the front of an application form doesn't mean you are agreeing to the T&C on the back.

 

to any of the CRA spies on here. Hello and see you soon in Court hopefully very soon. can't wait to get my letter from Vanquis saying sorry but your to much of a risk. wonder what one of the cra's is causing me problems.

it has even affected my business account i have just opened.

[BlueSmartie]

Wilson v Hurstanger

 

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

 

"33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

 

Dave

 

Absolutely right - but an agreement can be more than one page, and if separate T&Cs are referred to on the app. form, they are treated as being 'embodied' (included) in the agreement:

 

From CCA s189 (4) - definitions:

 

(4) A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it.

 

So where that judgement says the prescribed terms cannot be in 'another document', that doesn't include any document that is referred to in the signature page/application form - such a document is part of 'the agreement itself'.

[banker_rhymes_with]

Hello BlueSmartie!

 

Just curious, but are you a banker?

 

Cheers,

BRW

[BlueSmartie]

doesn't the signature of creditor and debtor have to be at the bottom of the terms and conditions to also make it legal.

signing the front of an application form doesn't mean you are agreeing to the T&C on the back. (if you sign an 'agreement' document, you are agreeing to everything on that document, including anything referred to that might be on a separate page! Whether or not an application form can be construed as an 'agreement' in the first place is a question of technicality and construction and there's a whole raft of debate about that!)

 

to any of the CRA spies on here. Hello and see you soon in Court hopefully very soon. can't wait to get my letter from Vanquis saying sorry but your to much of a risk. wonder what one of the cra's is causing me problems.

it has even affected my business account i have just opened.

 

I hope you're not hinting that I might be a spy, because I can assure you I am most definitely not!!

[BlueSmartie]

Hello BlueSmartie!

 

Just curious, but are you a banker?

 

Cheers,

BRW

 

No - I am a consumer on a mission - just like everyone else on here, but my fight against greedy creditors, bullying DCAs and 'mightier than thou' CRAs etc started several years before CAG was even thought of, so I have learnt a thing or two along the way.

[banker_rhymes_with]

No - I am a consumer on a mission - just like everyone else on here, but my fight against greedy creditors, bullying DCAs and 'mightier than thou' CRAs etc started several years before CAG was even thought of, so I have learnt a thing or two along the way.

 

Really?

 

The Jury is still out here.

 

Cheers,

BRW