Wilko v just about everybody

[B3rty]

Is there a link for this quote?

[wilko1]

I’ve noticed a lot of threads on here where the OC or the DCA fail to supply an enforceable CCA. Then the poster gets advice like, send this letter, or that letter or the other letter. Apart from enjoying getting into a war of words, why would you send anything? If you send long winded letters full of legal jargon saying what your rights are and what their obligations are surely you are just forewarning them as to what you are going to rely on in court. Wouldn’t it be better to just pretend you are an idiot, then surprise them, with your arguments, if it gets to court .

What do others think?

[Newborn]

Personally I have had great success with short to the point letters, which let them know I am aware of the legal issues. It has stopped the demands but they still process data via the CRAs.

 

Newborn

[ukaviator]

You find Wilko that whilst you ignore certain demands from the DCA's and Financial Institutions, they are behind the scenes wrecking your credit rating and even issuing Default Notices without an agreement of which they rely on.

 

You have to remind them of the implications of carrying out such action, and try to prevent or limit the damage they cause in chasing you.

 

It's a good paper trail for you to keep if you end up in court.

[miss muppet]

Sorry, only just seen this, no, my friendly Consumer Services ~(TS) sent it to me, I should think most TS's would have this as it relates to the the new Consumer Protection Regulation 2008 , its a quote from May 2008. Its about 4 pages long and if you want a copy I will try to get around to putting it on photobucket and transferring here.

[wilko1]

Hi all,

I was reading a thread the other day, and in it was a quote from the author of the 1974 Consumer Credit Act. Trouble is I can't find it again. Could someone who knows where the thread is please post a link to it.

Thanks

[42man]

I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/f...974-s127-3.pdf ) which states

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.

[wilko1]

Thanks 42man, that's the one.

[wilko1]

Am I correct in thinking that when you sign a credit agreement you are giving the lender written permission to make entries with credit reference agencies if you default on your account. Am I also correct in thinking if the credit agreement can’t be found then the lender has no right to put entries on your credit file, and any they have already put on should be removed ASAP.

If the above is correct is it right to think that the credit reference agencies should check that the lender has a signed agreement before they allow any entries to be made. If they should check but don’t, surely they are negligent and should remove any entries, without you having to persuade the lender to remove them.

What I’m asking is, is it worth approaching the credit reference agencies to get unwarranted/unlawful entries removed.

Thanks

[SharpmanTF1]

look at this thread, may be of interest to you

http://www.consumeractiongroup.co.uk/forum/legalities/24013-defaults-proposed-method-removal.html?highlight=default+notice+removal+cra#post187269

 

sharpman

[wilko1]

If a CCA has the prescribed terms but has no date on it and there is no signature from either side, is it enforceable?

Thanks

[huggy41]

i a word no

we have cca 7 companies only got 2 replies both blank agreements stating this is the best part THIS IS WHAT IT WOULD OF LOOKED LIKE you've got to feel for them not.

[wilko1]

Hi all,

 

I have a few creditors, a mixture of DCA's and OC's. I've CCA'd them all and have received a few replies, nothing I've received is remotely like an enforceable agreement. All cards were taken out pre 2004.

 

My situation is this, I'm out of work and on incapacity benefit, I live in rented accommodation and I have no worthwhile assets.

 

I'm thinking of treading softly at the moment by writing to them and commenting that it looks like they will struggle to enforce any agreement through the courts. Also that I have no disposable income to pay them with anyway, and I'd like to ask them if they would consider writing off the whole debt.

 

Any ideas or suggestions as to how I should word the letter, also any other suggestions as to how I should procede in my situation.

 

Many thanks.

[wilko1]

If a creditor has failed to supply a copy of an enforceable agreement and the account falls into dispute can the creditor add interest to the debt?

If they can't is it a law or just a guideline, either way could someone kindly put a link up to the law/guideline.

 

Thanks

[maroondevo52]

Hi, wilko.

 

It really depends on the individual circumstances.

 

If a CC a/c is in dispute because of failure to respond properly to a CCA request, you don't have to continue paying after the CC's deadline to reply has expired.

 

If a bank or CC a/c is in dispute re charges, the bankers may still expect you to service the debt until the dispute is resolved by negotiation or a court hearing.

 

Have a look at this 'link' re, OFT Debt Collection Guidelines. In particular check Sections 2.6 and 2.8.

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf

 

In reality, you can dispute and quote all you like but they tend to keep writing, phoning and harassing.

 

(Borrowed this from Slick132)

 

Regards.

 

Scott.

[spamheed]

Charges can only be applied to a debt if those charges are stipulated in the agreement that you entered into. regardless of whether it is a DCA or OC who is applying the charges.

 

If they don't have the agreement then they have no right to apply any charges of any kind.

 

It may be worth sending a SAR to the OC to see if any unlawful charges have been applied to the account, it will also give you the correct amount owed at the time of default

[wilko1]

If you are being persued for a debt that hasn't an enforceable CCA, and the creditor threatens to and then issues court papers against you. Would you be able to counter claim, saying your credit rating has been ruined by them putting a default on your file with a CRA, and sue them for damages. If you can do this could you claim legal aid to do it. If so how do you go about getting legal aid?

Thanks

[Monty2007]

If you are being persued for a debt that hasn't an enforceable CCA, and the creditor threatens to and then issues court papers against you. Would you be able to counter claim, saying your credit rating has been ruined by them putting a default on your file with a CRA, and sue them for damages. If you can do this could you claim legal aid to do it. If so how do you go about getting legal aid?

Thanks

 

Hi this area is covered elsewhere on the site. The lack of a valid CCA means that they cannot enforce the agreement but the debt still exists.

 

They (the OC or DCA) have the right to inform the CRA's of your outstanding debt, irrelevant of them not having a valid CCA. These are rights that have been upheld by the ICO and they will state that you agreed to this when you applied for the card/credit. The agreements are usually invalid by virtue that they do not contain the prescibed terms under the 1974 Consumer Credit Act and supporting provisions, their right to update the credit agencies is very different and people are trying to break new ground in this area, but no success as of yet.............

 

There are a few ongoing cases in respect of this, you will need to search them on CAG.

[palomino]

These are rights that have been upheld by the Information Commissioners Office and they will state that you agreed to this when you applied for the card/credit.

 

On the agreement that they are unable to produce.

[Monty2007]

On the agreement that they are unable to produce.

 

Yip, that's the deal. They will be able to show that you used the cash. Just that the agreement cannot be enforced. Most can produce an application where the permission to process data has been agreed.

 

I wish this was not the case but it is, some threads on CAG worth reading around.

[pt2537]

If you are being persued for a debt that hasn't an enforceable CCA, and the creditor threatens to and then issues court papers against you. Would you be able to counter claim, saying your credit rating has been ruined by them putting a default on your file with a CRA, and sue them for damages.

Simply , Yes you can

 

Durkin -v- DSG retail and HFC Bank sets this out and follows from the judgment in Kpohraror v Woolwich Building Society - [1996] 4 All ER 119

[wilko1]

I read, I think a judgement, somewhere on here that if the prescribed terms aren’t on the signed agreement then the agreement is unenforceable and the money that was lent should be classed as a gift.

Has anyone else seen this judgement and could you post up a link please.

If the above is correct and the money is a gift, then surely the “creditor” can be made to remove all adverse references from the CRA’s. What do you think?

[Stornoway]

I havent seen that post myself but I would be surprised if it were true. My understanding is that even though the debt may be unenforceable, the debt is still outstanding and the bank can still chase you for the monies. So you face probably a long period of DCAs chasing you for cash with you reverting to say - sue me.....(they obviously cant successfully take you to court without a valid agreement). Some have even been known to chance taking someone to court without a valid agreement because in many cases the borrower will not defend the action.

[creditcardmug]

Actually it is true!....details here,

 

Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26 "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 ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

[pt2537]

Furthermore, if the finance is secured upon an item, then you not only have the debt written off but pursuant to s106(d) you will be able to get an order from the court ordering the return of the monies paid