Payments made under mistake ??

[photoman]

If a loan (or perhaps even a credit card), agreement is later found by yourself to be unenforceable, then would this mean that any payments made prior to your realisation, were actually made whilst acting under a mistaken presumption?

 

ie: You made the payments under pressure from the provider, who insisted upon all such payments, by relying upon (even threatening to enforce) an agreement that was invalid and unenforceable.

 

Thus your payments were made under duress and pressure by the provider, who claimed that the agreement was valid, whilst in fact it was not.

 

If so, as I believe you can claim that you paid whilst acting under a mistake, we should be able to seek redress for such.

 

 

Here are some thoughts and discussion from another thread,

[photoman]

Here are posts from other thread:

[photoman]

Quote:

Originally Posted by photoman

 

IMHO,

If an agreement is deemed as having been unenforceable all along, then any payments you as the supposed debtor actually made, would have been made (under duress and pressure from the creditor or DCA) as the result of a "mistake".

 

ie: you were making payments to them under the mistaken presumption (due to their own assertions) that they were actually entitled to such.

 

Therefore, you should then also be entitled to claim all such payments back, as they were made whilst you were acting under a "mistake".

 

Also... in such circumstances, could one also claim for restitution of your further subsequent losses as a result of this mistake (ie: any interest incurred on the accounts used to make the payments, and/or losses from having been deprived your use of such sums) ?

 

... and... also claim for restitution of the creditors subsequent gains from their use of such sums ?

 

 

Any thoughts anyone ??

 

 

PM

 

Quote:

Originally posted by Paulwlton

 

IMO the mistake argument is devoid of merit. The debtor signed and received a copy of the agreement at the outset and therefore had the option of making payments under the terms of the agreement whether enforceable or not.

 

Paul

 

 

Quote:

Originally posted by Photoman

 

ah... but did they actually have a choice ?

 

The creditor would in all likelihood have insisted upon a DD arrangement from the outset, plus they would also have actively chased the debtor for missed payments by citing and relying upon the terms of the agreement.... which despite the creditors assertions was not actually enforceable.

 

Thus, the debtor was being made to make payments against an unenforceable agreement, by acting under the mistaken presumption that (due to the creditors assertions) they had an obligation to.

 

PM

 

Quote:

Originally posted by Paulwlton

 

Yes they had a choice - they either pay or don't pay on an uneforceable agreement. There are lots of members who have chosen not to pay because they have found their agreements to be unenforceable now that they've been educated. I know of a person who signed an unenforceable higher purchase agreement and never paid a penny from the outset... the gift from the creditor was a new motorhome.

 

I think we're going slightly off topic here...don't want to distract from the multiple agreement discussion.

 

PW

 

 

Quote:

Originally posted by Photoman

 

Paul,

 

I still think there is some good merit in my argument.

 

My point is the fact that the debtor was not aware they had a choice.

 

That was, perhaps not until such time as now, when they finally realise that the agreement was in fact unenforceable all along.

 

Thus, all payments prior to your becoming aware of such a fact, were made whilst acting under a mistaken presumption.

 

Okay,

Whilst I still maintain this view, and still want and welcome comments from others, I also agree we are going off topic.

 

Perhaps I will start a thread on this point, and post a link here.

 

 

PM

[photoman]

Anybody gonna comment ??

[ukaviator]

This is a good read Photoman. I briefly looked over this a while back, but didn't finish it.

 

http://fds.oup.com/www.oup.co.uk/pdf/0-19-928753-8.pdf

[photoman]

Thanks UK,

 

Have partly read the book too..... however the only versions I have only ever seen online are shortened abridged versions.... likewise the link you've posted only goes as far as the first chapter, and the juicy bits I suppose require that you buy the book.

 

Suppose, only right really, copyright and authors royalties and all that.

 

What's your own learned view on the matter ?

 

PM

[micko19]

Yes this is an interesting thread and i hope you don't think I am going a bit off subject.

I was wondering why a loan being voidable can be applied after settlement and could the section 18 issues be used in proving a loan to be voidable. I have read some material that says any serious misrepresentation can make loans voidable...

 

The differance here being that you cannot claim the gift but get everything back apart from the bare bones debt..ie the ppi erc all payments made etc...

 

If someone was going to try the above challenge.... ie giving merit to the mistake argument.... would it be usefull to ask the court to find the loans voidable in the event the judge find no merit in the "mistake" argument...

 

cheers

 

micko

 

keep up the good work

[photoman]

Yes this is an interesting thread and i hope you don't think I am going a bit off subject.

I was wondering why a loan being voidable can be applied after settlement and could the section 18 issues be used in proving a loan to be voidable. I have read some material that says any serious misrepresentation can make loans voidable...

 

The differance here being that you cannot claim the gift but get everything back apart from the bare bones debt..ie the ppi erc all payments made etc...

 

If someone was going to try the above challenge.... ie giving merit to the mistake argument.... would it be usefull to ask the court to find the loans voidable in the event the judge find no merit in the "mistake" argument...

 

cheers

 

micko

 

keep up the good work

 

 

My point here is; That once the loan is found to have been unenforceable all along, then you claim that as you've only just discovered the mistake, then any past payments were made whilst acting under said mistake.

 

You then claim for e refund of any payments made whilst acting under the mistake, and for a restitution of a/ your subsequent losses, and b/ their subsequent gains..

 

Obviously you need to have the contract proven as unenforceable first, and should look at the multiple agreements thread as an example of situations where this is the case.

 

regards

 

PM

[micko19]

I do essentially agree with what you are saying but in cases of unenforceability the original loan amount is kept by the lender plus return of every single payment made ie the loan is like a gift ...and part of the punishment intended by the Consumer Credit Act.

 

Just thinking that they would argue against the merit of the "mistake" argument stating that the contract must be alive to be unenforceable ie you cannot enforce something that is not there anymore...

 

I was merely thinking proving a loan to be voidable would be a possible second best option....

 

micko

[pt2537]

hmm, mistake is a knotty issue and one that i cannot due to time constraints sit down and type out a full reply

 

However,

 

Is recovery of monies paid by mistake possible? Yes

 

Would an agreement which you after 4,5 or 6 years say, find to be defective give you the right to claim restitution of interest payments? yes unquestionably

 

lets not forget the CCA 1974 itself gives a right of recoivery of monies paid towards a secured loan where the agreement is defective

 

when i get a mo, i will post some useful stuff

[pinknico]

Subbing

[alangee]

Subbing

[micko19]

Many thanks PT... hope you find a lillibit of time to come on back here with some more advice

 

micko

[IdaInFife]

There has been many threads on the subject but it only makes it unenforceable through court of law and many have tried and failed to get monies back.

 

Although I do agree with you and believe it the own lenders fault I ceertainly wouldn't advise anyone to try and claim back the payments but very eager to see what Paul will post later

 

 

Ida x

[reallymadwoman]

The only time I have used this argument is as a threat to DCAs and OCs who want to carry on with their threatening behaviour after admitting to no agreement at all. I've never heard from (either of) them again, which I am happy to accept.

 

Those who have continued with their threats may well find this tested in the courts in due course.

[ukaviator]

Hi PM

 

I was looking into using the Fraud Act 2006.

 

http://www.opsi.gov.uk/Acts/acts2006/pdf/ukpga_20060035_en.pdf

 

An attack on a Financial Institution using the Limitation Act 1980 also going back more than 6 years could be achieved also. Maybe PT or X20 would be the ones to give their points of view on this.

[micko19]

There has been many threads on the subject but it only makes it unenforceable through court of law and many have tried and failed to get monies back.

 

Although I do agree with you and believe it the own lenders fault I ceertainly wouldn't advise anyone to try and claim back the payments but very eager to see what Paul will post later

 

 

Ida x

 

hi ida and thanks for your comments could you tell me if the people who tried and failed have got threads on here as it would certainly be usefull to see the arguments used against it...

 

many thanks

 

micko

[MARTIN3030]

Having read much on this also I would say that without a doubt the mistake elements do offer remit.

But as always,a hearing taking place in the SCT will probably be influenced on the day by the Judge-we have seen so many who remain unsympathetic to lenders who are just being evasive.

But if there was a clear watertight case presented,then it could be another matter.

Equally the mistake aspects could be applied to many areas.

In 2006 one member was refunded his loan in its entirity which he was given to address penalty charges on his business account-I believe that his defence used mistake in his arguement.

I think in the early days of CAG there were a few such cases but were tied up with confidentiality agreements.

A claimant is not obliged to sign any conf as full and final-but if they did and then breached it,then potentially they could be in big trouble.

[militantconsumer]

This thread is very interesting, and relevant to my Egg thread about a potentially unenforceable agreement that we trying to decide whether to challenge or not:

http://www.consumeractiongroup.co.uk/forum/egg/174507-militant-consumers-friend-egg.html

 

On my thread, two posters have claimed that my agreement is definitely unenforceable, but we are probably too worried to just sit back and wait to be harrassed by DCAs, and then sued with risk of CCJ if we are wrong.

 

Therefore we are concentrating on PPI refunds at the moment as a less risky way of reducing the debt. (though we have not ruled out asking a lawyer to check out the agreement). Perhaps we should do both!

 

However, paying the debt off and then coming back at Egg with this argument is another matter. Ok, so it's probably less chance of success than refusing to pay and claiming unenforceability. But on the other hand less risky than waiting to be sued.

 

Perhaps we could put the arguments to Egg in the meantime. And if they tell us we are wrong and the agreement is correctly executed, then we stop paying and they get nasty, then we pay up in full at the last minute.... they'd have definitely told us some lies and we'd have a pretty good case for a "mistake" being made?

[micko19]

This thread is very interesting, and relevant to my Egg thread about a potentially unenforceable agreement that we trying to decide whether to challenge or not:

http://www.consumeractiongroup.co.uk/forum/egg/174507-militant-consumers-friend-egg.html

 

On my thread, two posters have claimed that my agreement is definitely unenforceable, but we are probably too worried to just sit back and wait to be harrassed by DCAs, and then sued with risk of CCJ if we are wrong.

 

Therefore we are concentrating on PPI refunds at the moment as a less risky way of reducing the debt. (though we have not ruled out asking a lawyer to check out the agreement). Perhaps we should do both!

 

However, paying the debt off and then coming back at Egg with this argument is another matter. Ok, so it's probably less chance of success than refusing to pay and claiming unenforceability. But on the other hand less risky than waiting to be sued.

 

Perhaps we could put the arguments to Egg in the meantime. And if they tell us we are wrong and the agreement is correctly executed, then we stop paying and they get nasty, then we pay up in full at the last minute.... they'd have definitely told us some lies and we'd have a pretty good case for a "mistake" being made?

 

what exactly are the risks of challenging for you....I think its an important one to ask as they rely on our fear of challenges....This is why they systematically abuse all the laws of the CCA and DPA AGAINST US... I received 300 pages of defence 3 days before court against GE ...they abuse every law in the book compulsively...

 

my dad used to say ....the worst they can do is kill you....

 

wise words indeed..

 

every body seems to think you need to be judge deed .....county court is an empty room with you and a judge and whatever local yokum jobsworth solicitor they can find that will try to defend the indefensible

 

micko

 

mick v ge won..... judge barraclough 1/9/2008... huddersfield county court...

[militantconsumer]

The risk is my friend being sued by Egg, losing, and ending up with a CCJ. At present she only has defaults, and these will drop off the credit file in a couple of years.

 

If there is a way to proactively challenge then we are well up for it. Anyone reading this, please do post on my thread.

[Goldlady]

Subbing to this one. I have taken the view with my ex credit cards:rolleyes: that I have paid them back the capital and as they have nothing to enforce the interest or charges then they are now out of my life (thanks to CAG I have to say). I think the business claimant who was forced to take out a loan to repay the charges was well within his rights to fight and win. This has also happened to us on more than one occasion but we seem to have successfully got rid of the DCAs - which adds weight to that argument.

[micko19]

Having read much on this also I would say that without a doubt the mistake elements do offer remit.

But as always,a hearing taking place in the SCT will probably be influenced on the day by the Judge-we have seen so many who remain unsympathetic to lenders who are just being evasive.

But if there was a clear watertight case presented,then it could be another matter.

Equally the mistake aspects could be applied to many areas.

In 2006 one member was refunded his loan in its entirity which he was given to address penalty charges on his business account-I believe that his defence used mistake in his arguement.

I think in the early days of CAG there were a few such cases but were tied up with confidentiality agreements.

A claimant is not obliged to sign any conf as full and final-but if they did and then breached it,then potentially they could be in big trouble.

 

top contribution martin but i have to say ....we are leeds.......

 

cheers

 

micko

[MARTIN3030]

Ha Ha Miko-yes you got the Sl trophy but we still have the CC and SL Shield........Roll on February;)

[micko19]

respect

 

micko