Payments made under mistake ??

[KER]

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

 

 

But then why can't you get a CCJ removed if you find the agreement is defective and they didn't produce an agreement originally to get the CCJ in the first place....

[pt2537]

But then why can't you get a CCJ removed if you find the agreement is defective and they didn't produce an agreement originally to get the CCJ in the first place....

cant you

 

thats not what Brooke, Longmore LJJ and Sir Martin Nourse decided in the case of Southern & District Finance plc v Turner - [2003] All ER (D) 112 (Nov)

[KER]

cant you

 

thats not what Brooke, Longmore LJJ and Sir Martin Nourse decided in the case of Southern & District Finance plc v Turner - [2003] All ER (D) 112 (Nov)

 

 

Because I asked about this and I was told no.... I'll go find the post..>!

 

It's here:

consumeractiongroup.co.uk/forum/debt-collection-industry/166571-moorcroft-barclaycard-2.html#post1812585

 

Why can I never get simple links on this site to work... grrrr

(have to put the www back in and hopefully it will work!)

 

Edited January 4, 2009 by KER

[MARTIN3030]

Link does not work.

Here is the thread.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/166571-moorcroft-barclaycard.html?highlight=moorcroft+barclaycard

[KER]

Link does not work.

Here is the thread.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/166571-moorcroft-barclaycard.html?highlight=moorcroft+barclaycard

 

 

 

They never seem to work for me.. grr

 

 

Anyways, the posts I am referring to are on the second page of that thread!

[joneseyblod]

subbing

[KER]

Mm PT never came back!

[pt2537]

Mm PT never came back!

thats because PT has had 3 repo hearings, a directions hearing and 5 trials this week in his day job to prepare for, so he hasnt really had much time to spare!

[micko19]

PT yo is top man keep up the good work...

 

micko

[KER]

thats because PT has had 3 repo hearings, a directions hearing and 5 trials this week in his day job to prepare for, so he hasnt really had much time to spare!

 

 

Excuses Excuses

 

I've got an exam in family practice, an exam in family law (both week after next), 4000 words to write about consent to medical treatment with the Mental Capacity Act amongst other things and yet I still find time to procrastinate hahaha :D

[micko19]

Excuses Excuses

 

I've got an exam in family practice, an exam in family law (both week after next), 4000 words to write about consent to medical treatment with the Mental Capacity Act amongst other things and yet I still find time to procrastinate hahaha :D

 

respect

 

I am hoping PT is correct on this , ie may have been unaware of that particular case law when you previously enquired etc

 

and hope you both keep advising on here;)

Edited January 8, 2009 by micko19

[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.

 

So, any more thoughts from anyone on this point ?

[Guest suziedarkness]

Subbing

[micko19]

that is exactly right in the event of the agreement being unenforceable you should be entitled to the return of all payments made and allowed to keep the entir loan also. This is true of the wilson case wher the woman got to keep the car and had all her monies returned also.....

 

micko

[photoman]

Subbing

 

Subbing

 

subbing

 

Subbing

 

 

Pleeeeeeeeeease Guys, make a comment or express an opinion, rather than just subbing !!

 

We would all like as many views and opinions on this issue.

I'm sure you all have an interest or opinion on the matter, otherwise you wouldn't be subbing ..... so do please actually say something .... even if you just want to ask something further on the issue.

 

Otherwise this thread is not gonna get anywhere.

 

that is exactly right in the event of the agreement being unenforceable you should be entitled to the return of all payments made and allowed to keep the entir loan also. This is true of the wilson case wher the woman got to keep the car and had all her monies returned also.....

 

micko

 

Micko, Do you have a link to the Wilson case handy ?

 

I've already read the case before, but can't find the link at the moment.

 

Could you post it up (the link that is)

 

..... and perhaps even post what you believe are the relevant sections of the judgement.

 

Hopefully others will then see and maybe comment on it.

 

Lets get some in-depth serious discussion going on in here ?

 

.... this tact and approach could have some really very massive implications for a lot of people !!

 

Thanks

 

PM

 

 

 

..... and no more "subbing" anyone (use the subscribe to thread function instead), or I'll come round and rap you over the knuckles with a ruler !!

 

 

PM

[banker_rhymes_with]

Hello PM!

 

Do you have a link to the Wilson case handy ?

 

I think this is the one (if not, it's good reading anyway)!

 

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

 

Cheers,

BRW

[photoman]

Thanks BRW.

 

Just reading through it now..... certainly is very interesting !!

 

 

Here's a few tasty snippets :

 

72. Undoubtedly, as illustrated by the facts of the present case, 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. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in cases of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

 

75. Nor do I have any difficulty in accepting that money lending transactions as a class give rise to significant social problems. Bargaining power lies with the lender, and the social evils flowing from this are notorious. The activities of some lenders have long given the business of money lending a bad reputation. Nor, becoming more specific, do I have any difficulty in accepting, in principle, that Parliament may properly make compliance with the formalities required by the Consumer Credit Act regarding 'prescribed terms' an essential prerequisite to enforcement. In principle that course must be open to Parliament. It must be open to Parliament to decide that, severe though this sanction may be, it is an appropriate way of protecting consumers as a matter of social policy. In making its decision in the present case Parliament had the benefit of experience gained over many years in the working of the Moneylenders Act 1927 and the hire purchase legislation, and also the views of the Crowther committee. Further, it must be open to Parliament so to decide even though the lender's inability to enforce an agreement will not assist a borrower who consents to the enforcement of the agreement in ignorance of the true legal position.

 

 

87. There is one other issue which has to be addressed. As has already mentioned, the Court of Appeal held in its first judgment that the effect of section 127(3) of the 1984 Act was that the agreement between Mrs Wilson and FCT was unenforceable and that she was entitled to repayment of the sum which she paid over to redeem her motor car. Sir Andrew Morritt V-C said that he would not wish to arrive at a conclusion which permitted Mrs Wilson both to retain her car and to recover the money which she paid to redeem it unless the statutory provisions left no alternative: [2001] QB 407, 416D, para 20. Having considered the decision of your Lordships' House in Dimond v Lovell [2000] 1 AC 384 however he concluded that prima facie she was entitled to the orders which she sought: para 25. FCT have not sought to appeal against this decision, and it will not be disturbed. But the Secretary of State submits that the decision in Dimond v Lovell is distinguishable and that, if the agreement is unenforceable, FCT is entitled to a restitutionary remedy against Mrs Wilson ("the Dimond v Lovell issue").

 

100. But the consequence of reading section 127(3) of the 1974 Act in a way that is compatible with FCT's Convention rights cannot be looked at without taking account of the effects of doing so on the other party to the transaction, Mrs Wilson. She too acquired rights as a result of the transaction, as well as FCT. The set of provisions of which it forms part, and on which she relies, were enacted for the protection of consumers. Section 61(1) provides that a regulated agreement is not properly executed unless it satisfies certain requirements. It must include a statement of all the prescribed terms, which include a term stating the amount of the credit: paragraph 2 of Schedule 6 to the Consumer Credit (Agreements) Regulations 1983. Section 65(1) provides that an improperly executed agreement is enforceable against the debtor or the hirer on an order of the court only. The amount of the credit in this agreement was incorrectly stated, so Mrs Wilson became entitled to the protection of section 65(1) as soon as it was entered into. What this right meant in her case was spelled out in section 127(3), which provides:

 

"The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)."

 

 

107. The rights of property which are in issue in this case are those set in an agreement which is regulated by the 1974 Act. The Act subjects the rights of the creditor to restrictions in some circumstances. Section 65 declares that a regulated agreement which is improperly executed cannot be enforced by the creditor except by means of an order of the court, and section 127(3) declares that it is not to be enforceable at all except upon the condition which it lays down. The agreement which was entered into in this case was from the outset an agreement which was improperly executed. So it was always subject to the restrictions on its execution which sections 65(1) and 127(3) of the 1974 Act set out. I would hold that FCT's Convention rights under article 1 of the First Protocol are not engaged in these circumstances.

 

..... all very interesting stuff !!

 

 

PM

[pt2537]

Kleinwort Benson Ltd v Lincoln City Council and other appeals - [1998] All ER (D)518

 

Anglo-Scottish Beet Sugar Corporation Ltd v Spalding Urban District Council - [1937] 3 All ER 335

 

Kiriri Cotton Co Ltd v Dewani - [1960] 1 All ER 177

 

 

All cases that deal with monies paid by mistake

 

It is fair to say that if you make a payment under hte belief that the agreement is enforceable then you discover that it is not, you should be able to recover the monies paid over and above the capital at least

 

Dont forget that the CCA makes it clear that ALL monies must be repaid if the loan is secured as the security becomes ineffective when the agreement is unenforceable

[KER]

But PT, what about my Q, when you say now I should claim, but before said I was unlikely to succeed.... ?

[Goldlady]

Dont forget that the CCA makes it clear that ALL monies must be repaid if the loan is secured as the security becomes ineffective when the agreement is unenforceable

 

PT can you clarify what you mean here as this may be extremely relevant to another thread I am subscribed to. Ta

 

EDIT - Think I have worked it out - what you are saying is that if you have paid all the capital on anotherwise unenforceable secured loan then the security no longer exists..

Edited January 8, 2009 by Goldlady
read it again

[pt2537]

106. Ineffective securities.

Where, under any provision of this Act, this section is applied to any security provided in relation to a regulated agreement, then, subject to section 177 (saving for registered charges)—

 

(a)

the security, so far as it is so provided, shall be treated as never having effect;

 

 

 

(b)

any property lodged with the creditor or owner solely for the purposes of the security as so provided shall be returned by him forthwith;

 

 

 

©

the creditor or owner shall take any necessary action to remove or cancel an entry in any register, so far as the entry relates to the security as so provided; and

 

 

 

(d)

any amount received by the creditor or owner on realisation of the security shall, so far as it is referable to the agreement, be repaid to the surety.

 

 

and

 

Section 113

 

(3) Where—

 

(a)

a regulated agreement is cancelled under section 69(1) or becomes subject to section 69(2), or

 

 

 

(b)

a regulated agreement is terminated under section 91, or

 

 

 

©

in relation to any agreement an application for an order under section 40(2), 65(1), 124(1) or 149(2) is dismissed (except on technical grounds only), or

 

 

 

(d)

a declaration is made by the court under section 142(1)(refusal of enforcement order) as respects any regulated agreement,

 

 

 

 

 

section 106 shall apply to any security provided in relation to the agreement.

 

 

 

i think these are the key points

[pt2537]

But PT, what about my Q, when you say now I should claim, but before said I was unlikely to succeed.... ?

I do tend to be a bit reserved when it comes to advising people to start litigation as at the end of the day, its not me that would end up with the adverse costs order if it all went wrong now is it

 

Also i have undertaken a great deal of research on this subject recently so to be honest that may have been the tipping point which changed my view

[photoman]

PT.

 

Sorry to burden you with more questions !!

 

Just a quick one though?

 

I read somewhere else on another thread, that a loan provider is (and quite strictly so) not supposed to create a loan if it is used in part or in full to repay another loan held with the same provider.

 

I will try to find out where I saw this, but wondering if you know anything about this, and could steer me in the right direction perhaps ?

 

Thank you.

 

PM

[MARTIN3030]

Photoman,if there was reliance of coersion or pressure being used as part of any defence,then this would have to be proven-this is always very difficult to prove,and comes up time and time again.

There is very seldom anything in writing since pressure or forceful tacs are always done either by phone or else face to face.

My point is that there is likely to be very little evidence to prove the "under duress" stance.

 

The Kleinwort Benson example is a great reference insofar as action later is concerned.

[MARTIN3030]

PT.

 

Sorry to burden you with more questions !!

 

Just a quick one though?

 

I read somewhere else on another thread, that a loan provider is (and quite strictly so) not supposed to create a loan if it is used in part or in full to repay another loan held with the same provider.

 

I will try to find out where I saw this, but wondering if you know anything about this, and could steer me in the right direction perhaps ?

 

Thank you.

 

PM

 

 

 

I think you can referre to the OFT final guidance here

 

Psychological/Physical Harrasment

 

Section 26 (b)

 

"Pressurising debtors to sell property,to raise funds by further borrowing,or to extend their borrowing."

 

This would fall into that category.

 

The OFT guidance is not specifically aimed at debt collectors-it applies to ALL holders of consumer credit licences-which obviously includes lenders.