why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

[Dotty50]

Last two posts say it all really!

 

Would it be possible to have a more 'hands on' approach in the legal forum and actually get legal representation in court, if needed, via CAG?

 

Whilst there is lots of help given with defences/arguments etc, it is a totally different ball game, when you are actually sitting with the judge and whoever turns up from the other side! (not that I have been there yet)

 

I read a lot on here and even after 18 months, I still would not want to defend myself, should it be required.

[PhiltheBear]

I read a lot on here and even after 18 months, I still would not want to defend myself, should it be required.

 

Whereas I. OTOH, would be delighted to defend myself. Trouble is that my creditors won't sue me - probably because they know they don't have the requisite legal documentation. So, they'll keep referring to collection agencies - and I'll keep telling the agencies that if they pursue me I'll add their names to a formal complaint to the Ombudsman. As that may affect their ability to keep their license they seem reluctant to bother me after that.

[means2anend]

Ditto:)

[basa48]

Ho

Hi

This is a common misconception of the high court ruling .It does not say that because an agreement is unenforceable the credit under the agreement is a gift, it in fact says the opposite.

It concludes that if it where a gift it would contravene the individuals basic human rights to the peaceful enjoyment of his property. You have to read the judgement in full.

Just because an agreement is unenforceable does not mean the money is not owed just that the court cannot assist in collecting it

Peter

 

I don't know how you reached that conclusion?

 

Lord Nicholls said at para 72 Wilson v Sec of State: section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security

 

and then at para 78. Accordingly, in my view section 127(3) is compatible with article 1 of the First Protocol. [of the Human Rights Act] i.e. does NOT contravene the Act.

[unclebulgaria67]

I agree with Peter. Just because an agreement is not an enforceable document, it does not make the debt amount a gift. It just means the court cannot get involved in enabling collection.

[basa48]

I agree with Peter. Just because an agreement is not an enforceable document, it does not make the debt amount a gift. It just means the court cannot get involved in enabling collection.

 

When is a gift not a gift? Just because it wasn't given with goodwill doesn't mean it isn't a gift in the eyes of the recipient.

 

I do appreciate the difference between a written off debt (which never happens) and an uncollectable debt.

 

Besides Lord Nicholls didn't say 'gift' he said 'windfall'. I can't remember who first used the term 'gift' in this context.

[diddydicky]

I don't know how you reached that conclusion?

 

Lord Nicholls said at para 72 Wilson v Sec of State: section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security

 

and then at para 78. Accordingly, in my view section 127(3) is compatible with article 1 of the First Protocol. [of the Human Rights Act] i.e. does NOT contravene the Act.

 

probably because he is "on the other side" and seeks only to unsettle and worry caggers into submission

[diddydicky]

I agree with Peter. Just because an agreement is not an enforceable document, it does not make the debt amount a gift. It just means the court cannot get involved in enabling collection.

 

in general terms yes= but not in this particular case

[diddydicky]

When is a gift not a gift? Just because it wasn't given with goodwill doesn't mean it isn't a gift in the eyes of the recipient.

 

I do appreciate the difference between a written off debt (which never happens) and an uncollectable debt.

 

Besides Lord Nicholls didn't say 'gift' he said 'windfall'. I can't remember who first used the term 'gift' in this context.

 

beware basa - some people on this forum run with the hares AND the hounds !

[paulwlton]

When is a gift not a gift? Just because it wasn't given with goodwill doesn't mean it isn't a gift in the eyes of the recipient.

 

I do appreciate the difference between a written off debt (which never happens) and an uncollectable debt.

 

Besides Lord Nicholls didn't say 'gift' he said 'windfall'. I can't remember who first used the term 'gift' in this context.

 

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; 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.

 

 

 

Regards

[lexis200]

probably because he is "on the other side" and seeks only to unsettle and worry caggers into submission

 

Yep, and if him stating that you shouldn't try chasing for a copy of your agreement unless you are being chased for someone else's debt etc doesn't ring alarm bells I don't know what does.

 

Whatever the reason for the non-response, the simple fact is they have a legal requirement to do what is requested under a sec 77/8 request. If they don't follow through with it complain, if no joy report them (probably won't do much good but worth a punt), then try SAR'ing them which may work.

[basa48]

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; 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.

 

 

Regards

Doh From the Wilson v First County appeal.

 

Now I remember.

[diddydicky]

Yep, and if him stating that you shouldn't try chasing for a copy of your agreement unless you are being chased for someone else's debt etc doesn't ring alarm bells I don't know what does.

 

Whatever the reason for the non-response, the simple fact is they have a legal requirement to do what is requested under a sec 77/8 request. If they don't follow through with it complain, if no joy report them (probably won't do much good but worth a punt), then try SAR'ing them which may work.

 

try to keep the SAR until after they have DN/terminated since you will otherwise miss this important information

[Peterbard]

Hi

 

I am not an any other side, to be honest i dont even know what the other side is.

 

What i say about the judgement and the facts regarding unenforceablt agreements are however basic facts.

 

THis was the whole point of the appeal in Wilson.

 

And is the reason DCA can continue to pester you even after an agreement is found to be unenforceable.

 

Read the judgement.

 

Peter

 

Peter

[Peterbard]

HI

If you are reffeering to me i never said any such thing re read the post

 

As for dd

 

Here

 

HI

OK

Section 27 of Wilson vs. County Trust

The unreality is , if we may say such an obvious unreality in treating the pawnbroker as if it were a voluntary disponor that we find that we do not find it a matter of any surprise that the argument advanced by the secretary of state cannot be supported. It cannot be supported because, we have said, a proper analysis of the 1974 Act does not lead to the conclusion that the 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 pawn do confer rights to the creditor, But those rights are subject to restrictions on enforcement

I thought this was common knowledge it seems i over estamated.

 

Peter

[basa48]

HI

If you are reffeering to me i never said any such thing re read the post

 

As for dd

 

Here

 

HI

OK

Section 27 of Wilson vs. County Trust

The unreality is , if we may say such an obvious unreality in treating the pawnbroker as if it were a voluntary disponor that we find that we do not find it a matter of any surprise that the argument advanced by the secretary of state cannot be supported. It cannot be supported because, we have said, a proper analysis of the 1974 Act does not lead to the conclusion that the 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 pawn do confer rights to the creditor, But those rights are subject to restrictions on enforcement

I thought this was common knowledge it seems i over estamated.

 

Peter

 

I think we all know the rights of the creditor are not extinguished, they are restricted. So what is your point? He still cannot use the courts to pursue the debtor. Apart from sending round 'Hairy Harry and the Enforcers' what else can a creditor do - even a default only lasts 6 years.

 

I dunno but you seem to be deliberately clouding this issue.

[diddydicky]

HI

If you are reffeering to me i never said any such thing re read the post

 

As for dd

 

Here

 

HI

OK

Section 27 of Wilson vs. County Trust

The unreality is , if we may say such an obvious unreality in treating the pawnbroker as if it were a voluntary disponor that we find that we do not find it a matter of any surprise that the argument advanced by the secretary of state cannot be supported. It cannot be supported because, we have said, a proper analysis of the 1974 Act does not lead to the conclusion that the 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 pawn do confer rights to the creditor, But those rights are subject to restrictions on enforcement

I thought this was common knowledge it seems i over estamated.

there you go again- patronising and still sticking the knife into those less knowledgeable (according only to you) than yourself

Peter

 

 

thank you- surprisingly- and contrary to your stated opinion of CAG and its members (which i am sure has included myself) on credit today and other forums- i am perfectly well aware of the implications of the judgement (and others)

 

 

where i am a little "thick" is failing to understand how you get welcomed back like the prodigal son and other much more productive and loyal caggers are driven out for disagreeing with you-

 

most of those on here are perfectly well aware that a debt may (not always- read the whole of the judgements you refer to), still exist- but that is the limit of our expectations- a debt which the creditor cannot enforce is as much use to then as a chocolate teapot

 

most of us understand and accept that we must deal with adverse credit for 6 years- but that is no bad thing and will be to the ultimate detriment of the lenders since that time will teach those concerned that they CAN live without credit cards after all.

 

dealing with DCA's for 6 years is a mere irritation in the great scheme of things

[diddydicky]

HI

If you are reffeering to me i never said any such thing re read the post

 

As for dd

 

Here

 

HI

OK

Section 27 of Wilson vs. County Trust

The unreality is , if we may say such an obvious unreality in treating the pawnbroker as if it were a voluntary disponor that we find that we do not find it a matter of any surprise that the argument advanced by the secretary of state cannot be supported. It cannot be supported because, we have said, a proper analysis of the 1974 Act does not lead to the conclusion that the 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 pawn do confer rights to the creditor, But those rights are subject to restrictions on enforcement

I thought this was common knowledge it seems i over estamated.

there you go again- patronising and still sticking the knife into those less knowledgeable (according only to you) than yourself

Peter

 

 

thank you- surprisingly- and contrary to your stated opinion of CAG and its members (which i am sure has included myself) on credit today and other forums- i am perfectly well aware of the implications of the judgement (and others)

 

 

where i am a little "thick" is failing to understand how you get welcomed back like the prodigal son and other much more productive and loyal caggers are driven out for disagreeing with you-

 

most of those on here are perfectly well aware that a debt may (not always- read the whole of the judgements you refer to), still exist- but that is the limit of our expectations- a debt which the creditor cannot enforce is as much use to then as a chocolate teapot

 

most of us understand and accept that we must deal with adverse credit for 6 years- but that is no bad thing and will be to the ultimate detriment of the lenders since that time will teach those concerned that they CAN live without credit cards after all.

 

dealing with DCA's for 6 years is a mere irritation in the great scheme of things

[Peterbard]

hI

My point is that you were incorrect in your assumption that is all.

 

Peter

[Peterbard]

No nobody else just you

 

You yet again show your total ignorance and then attempt to cover it up with bluster and arrogance.

 

Your posts are mainly copies of othere peoples previos wisdom some of whitch i must say i recognise as being my own from years ago.

 

THey say immitation is the siserest form of flatery, if it is any concellation your spelling is better than mine.

 

Peter

[diddydicky]

of course my knowledge is gleaned from historic and other avenues of research- - and yours is not?

[RobinWayRobinme]

Come on guys. There has been so much happening recently that the forum seems to be getting more of a forum for boosting a writers ego. Healthy discussion yes, but it seems to be going much further than that. PT and many others have been of considerable help to me. I know very little of Peterbard. However, were ever the advice/opinion/pointer in right direction/legislation/case law, comes from I have always accepted it gracefully but double checked and always attempted to fully understand exactly what I have been told before I have used it. I am the one who needs to use the info and I am the one who has most to lose in my battles. I think all Caggers should take this attitude. It is a learning process that you generally only get one chance to get right. I think that in some arenas the forum has moved away from the core values CAG was set up for in the first place.

 

So come on guys, can we get back to business and accept that the recent events have done nothing to help what I consider to be an invaluable resource for consumers needing help. I hope no one thinks I have stepped out of line in saying this, but I was very sorry to see PT leave but will continue to listen to opinions etc of all, peterbard included.

R

[Peterbard]

I don't know how you reached that conclusion?

 

Lord Nicholls said at para 72 Wilson v Sec of State: section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security[

and then at para 78. Accordingly, in my view section 127(3) is compatible with article 1 of the First Protocol. [of the Human Rights Act] i.e. does NOT contravene the Act.

 

I take it you now understan how i reached the conclusion

[diddydicky]

when he makes posts like these on other forums- what opinion do you expect us to form?

 

QUOTE

 

 

 

Hi

 

I am afraid I agree. I used to be a contributor to CAG in the earlier years and at that point it was pretty much a discussion forum ,it was possible to glean bits of information and a lot of users found it very helpful. At that point I do not believe it offered advice as such it was as I say a discussion group.

 

Now however the site has been taken over by so called "Legal experts", Some of which as you say even claim to be solicitors.

 

I am unsure of the motivation of these people, one are two are I believe involved in the business, perhaps it is in there interest to perpetuate the myth. More likely these are people who are bathing in the praise from the people they are" helping "and the status that they lack in their real life

 

Here is very little discussion now one of these luminaries will give information on why a particular agreement is unenforceable and every one else just agrees and thinks they don’t have to honour there commitments to the creditor.

 

I have been excluded from that site now simply because I challenged some of the assertions made there.

 

In my day job I have seen many people who have come into our office and asked us to intervene with lenders, they have followed advice given on the CAG site and ended up with a CCJ.

 

The problem is that these forums can be very attractive to people who are in financial difficulties ,offering a quick fix. The idea is introduced that the agreement they have is unenforceable so they do not have to pay at all.

 

When this advice comes from someone purporting to be a solicitor ,many take it to be true ,and basically stop paying their debts.

By the time they find out it is all nonsense they have lost the window of opportunity to negotiate with the creditor or make alternative payment agreements.

 

 

Hi

One of the main offenders has the screen name PT257.

Currently he is on the Egg thread of the forum on the legal issues section.

 

There he is advising people not to pay there egg credit card agreements pending a "Test Case" he is involved in on June the 4th.

I belive he is employed by one of the debt cancelling firms.

 

This particular thread has created no end of problems for us with people following the advice and then coming to us when the creditors enforce.

 

Needles to say I can find no record of any such hearing.

 

The thread is called " Egg agreements and what I think is wrong with them"

 

I have complained to the site and tried to post contrary arguments on thread but they are moderated and just do not appear.

[Peterbard]

Hi

 

 

Quite happy to

 

BUt i am getting a bit sick of the personal abuse.

 

YOu know i am continually being berrated for getting personal with PT but you count the number of instances on this thread and others of me being abused on here.

 

I have till now been hapy to let it go but it is wearing a bit thin.

 

Peter