Court Action BOS/AA card

[vjohn82]

empowered - It doesn't matter whether it is SCT or FT because I'm sure I'm right in saying the appeals process has no track.

 

You don't seem to have had many experienced CAGGERS looking in which is surprising... usually all the heavyweights come in when a hearing is close or has been scheduled.

 

You just have to decide whether you go out on your feet or your knees because I would be appealing this... there is sufficient case law on the books regarding Default Notices... no creditor can unilaterally end an agreement and expect a full repayment of the debt... the CCA is designed for consumer protection... not a luxury which the creditor can abuse whenever they like.

 

The Judge erred by allowing this onto the FT too... and I suspect they would have known this. You have been royally screwed over and I will help you fight this tooth and nail if you want to appeal.

[citizenB]

both Counsel and Judge were adamant that because of the clause in the T/Cs they could terminate when they liked without need for a D/N - I'd never heard of this before so couldn't fight back:(

 

The exact wording in their argument is

"The D/N is only required where the creditor wishes to rely on a breach. Where the agreement provides the right to terminate contractually, as in clause 15, reliance on a breach is not necessary. Credit card agreements generally contain this right as they are open ended agreements"

 

Hmmm, this ploy is being used by another bank/creditor as well. It wouldnt look too good in their advertising if they said .. heres a card for £5,000 you then go out and spend £4,550 only for them to say they are going to terminate the following month and by the way.. we want all our money back.. now would it.

[empowered]

CB - I can well remember when you first came aboard CAG.. look at you now.. havn't you come on leaps and bounds:p You truly are a little star;)

 

Vjohn - thank you so much for your offer. I know we've been screwed and have discussed with OH. If we would afford legal representation we would appeal but the thought of having to go through all that again brings us both out in a rash and worse. We are still shocked at the speed with which barrister railroaded this through and the contemptous comments of the DJ who said it was people like OH who was causing the banks to lose money and causing problems for decent minded customers who are now hit with monthly charges:-o We just weren't quick enough on the responses and were honestly lost with some of their arguments. The barrister advises banks and financial institutions and we cannot appeal without proper legal help. (If she were my daughter, I would have been immensely proud of her:p). Think we'll have to call it a day unless we win the lottery fairly soon in order to pay for representation. We both feel too sick to proceed any further.

 

I look at this as win some/lose some - Lloyds had to discontinue 2 claims and we've got charges back plus PPI so I suppose it evens itself out in the end.

Thank you all x

[babybear39]

If she were my daughter I'd divorce her!

[banker_rhymes_with]

Hello Empowered!

 

I would Appeal this, the Judgment is rubbish. You were stitched up by a devious Judge who simply handed down the Judgment he wanted, irrespective of the Act and Statute.

 

Their General Terms do not allow them to Contract Out of the Act, see s173:

 

PART XI

 

ENFORCEMENT OF ACT

 

Part XI Contracting-out forbidden

 

173.

 

(1) A term contained in a regulated agreement or linked transaction, or in any other agreement relating to an actual or prospective regulated agreement or linked transaction, is void if, and to the extent that, it is inconsistent with a provision for the protection of the debtor or hirer or his relative or any surety contained in this Act or in any regulation made under this Act.

 

(2) Where a provision specifies the duty or liability of the debtor or hirer or his relative or any surety in certain circumstances, a term is inconsistent with that provision if it purports to impose, directly or indirectly, an additional duty or liability on him in those circumstances.

 

(3) Notwithstanding subsection (1), a provision of this Act under which a thing may be done in relation to any person on an order of the court or the Director only shall not be taken to prevent its being done at any time, with that person's consent given at that time but the refusal of such consent shall not give rise to any liability.

 

Commencement 31 July 1974 (see Sch 3, note).

These are some notes to help explain s173:

 

General effect

 

The purpose of this section is to prevent any attempts to contract out of the Act, whether by the terms of a regulated agreement or in some other contract relating to a regulated agreement (whether or not constituting a linked transaction within the meaning of s 19). The effect is the same whether the attempt to contract out relates to a creditor's duties (eg in the supply of documentation), liabilities (eg under s 75) or disabilities (eg restrictions on enforcement of regulated agreements or securities relating to them). A term . . . in any other agreement Subsection (1) is clearly intended to avoid excluding terms wherever they appear. It is not certain whether any limit to the width of the subsection is to be implied . In particular, it is unlikely that the section is intended to strike down bona fide compromises of disputed claims (whether of a creditor against the debtor or vice versa). On the other hand there may be cases where it may be argued that such settlements ought to be avoided, eg where a creditor having wrongfully repossessed goods contrary to s 90, reaches a financial settlement with the debtor which is inconsistent with s 91 (although it may be noted that it is necessary to construe the word "actual" in sub-s (1) as relating to an agreement discharged by the Act in order to bring this situation within s173 at all).

 

Consent: It is for a creditor who seeks to rely upon sub-s (3) to prove that the debtor freely consented to his action. See, eg Mercantile Credit Co Ltd v Cross [1965] 2 QB 205, [1965] 1 All ER 577. It may be that the court will be more willing to find in favour of a creditor who took steps to explain the position to the debtor, so that he was aware at least that he was surrendering some of his statutory protection, but it is at least arguable that the information set out in statutory documentation (eg in a default notice) should suffice for this purpose. As to enforcement provisions to which sub-s (3) may apply, see in particular ss 40, 65, 90, 92, 113(2), 126 and 148.

 

Subsection (3) does not apply to s 132 (financial relief for hirer) since that section specifies the consequences of recovery of goods without action but does not prohibit recovery without a court order.

 

Definitions

 

Linked transactions: ss 19(1), 189(1) relative: ss 184(5), 189(1) court, debtor, Director, hirer, regulated agreement, regulation, surety: s 189(1).

 

The point being, this was a Regulated Agreement so, if they blew s87/s88 and wanted to claim they banged out of the Agreement anyway without needing a s87(1) Default Notice, then they had better come up with something within the Act that supports this, i.e. that entitles them to demand early payment of sums that were not otherwise due before the Agreement was Terminated.

 

They can't just say a s87(1) Default Notice was not actually needed because they spotted some problems with theirs, so they made up a secret part of The Consumer Credit Act 1974 that nobody else can see, one that allows them to evade their Regulated responsibilities and do what ever the feck they want.

 

Did they quote any other part of the Act, or did the Judge just say they could do this because their General Terms said they could? IOW, without in any way being supported by the Act that Regulates the Agreement.

 

If so, there's a solid Appeal point for starters.

 

What ever you do, don't burn your files and papers just yet!

 

Cheers,

BRW

[diddydicky]

there is absolutely no way any further costs will be incurred because on appeal this verdict will be overturned

 

there IS provision in all credit card agreements to reduce the credit limit but this applies solely to FUTURE borrowing and not to debts already incurred on the card which would continue to be paid monthly as per the agreement

 

nor can a creditor suddenly "change tack" - having already commenced proceedings based on an alleged default

 

this judge was either biaised or a total buffoon

[vjohn82]

this judge was either biaised or a total buffoon

 

Or a few too many...

[babybear39]

Are we taking bets?

[diddydicky]

Or a few too many...

 

i see a complaint to trading standards looming here

 

that glass is nowhere near full!!

[bradfordlad]

subbing -I'm hoping this one is a LONG way from over!

 

And good luck to you if you DO decide to appeal, I can't believe that a judge in this country can be so biased against the very people who pay his wages!!

 

BL

[freethemice]

Qupte from the Rankine judgement:

 

Claim Nos: 8BM40009-13

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

BIRMINGHAM DISTRICT REGISTRY

B e f o r e :

THE HONORABLE MR SIMON BROWN QC

____________________

Between:

(1) Basil Rankine v. American Express Services Europe Limited

(2) Amanda Rankine v. The Governor & Company of the Bank of Scotland

(3) Tesco Personal Finance v. Amanda Rankine

(4) Basil Rankine v. Halifax PLC

(5) Amanda Rankine v. HFC Bank Limited

36. The Court has no power to order a declaration as to the enforceability of the agreement in these circumstances. Section 142(1) of the Act provides as follows:

"Where under any provision of this Act a thing can be done by a creditor or owner on an enforcement order only, and either:

(a) the court dismisses (except on technical grounds only) an application for an enforcement order, or

(b) where no such application has been made or such an application has been dismissed on technical grounds only, an interested party applies to the court for a declaration under this subsection,

the court may if it thinks just make a declaration that the creditor or owner is not entitled to do that thing, and thereafter no application for an enforcement order in respect of it shall be entertained".

37. Thus the power to make a declaration under s.1 42(1) exists only in case where the court could grant an enforcement order. The court cannot do so in a case where a defective default notice has been served and accordingly there is no power to make a declaration in this regard.