Unenforceability Cases on hold until further notice

[Undercover-Elsa]

When was the second one sent, AC?

[angry cat]

When was the second one sent, AC?

 

March 2009.

[Undercover-Elsa]

Hmmm. Flashforward?

Why do I keep thinking slight of hand here. Was defining "enforceability" the true issue once they'd ascertained they had a sympathetic / gormless / half asleep / badly informed judge?

*delete which does not apply

[angry cat]

The wording in the above letters is quite clear!

Thus, RBS knew full well that they were dealing with an unenforceable application form; irredeemably unenforcable.

 

However, RBS did not cease any collection activiity, the opposite in fact.

 

The customer was pursued by a DCA who threatened Court Action, the DCA decided to drop the matter and pass it back to RBS.

RBS, then instructed another DCA to pursue the customer again threatening court action!

 

I paid great attention to what Mr. Handyside QC attempted to convey to the Court; not quite correct, Sir!

 

AC

[sequenci]

The whole what constitues 'Enforcement' debate has been raging LONG before this case. It was always my understanding that enforcement where the measures a judgment creditor could use if there was a default/forthwith judgment e.g. charging orders, warrants of execution etc.

 

Having said all this, I know there is fierce debate surrounding the differences between 'execution' and 'enforcement'...

[kel123]

We are indanger of going over the top and making assumption. This ruling is purely about S77 (Duty to give information to debtor under fixed-sum credit agreement) and not about S78 (Duty to give information to debtor under running-account credit agreement) The judge made this distinction very clear, that he was only dealing with S77 and said this at every turn.

 

Granted there were revelations that will have effect across the board, but again the judge very clearly made the distinction between redeemable unenforceability and irredeemable unfoceability. I consider his comments to be sound on this - there is a difference between the 2 especially after '1 month he commits a criminal offence' was completely resinded.

 

I think most of us now realise that 1 default is the same as 6 and as such it will make the knock on effect greater and the lenders will suffer as a consequence.

 

Just testing the water is no longer a valid option for the consumer, in fact this could have a detremental effect and make/promote more consumers to take it all the way to the end game (court), so to speak. If then it is found to be irredeemeably unenforceable this ruling does not wipe out the possibility of removing the default.

 

In some repects it is not a completely bad ruling and in some respects clarifies the situation, whicih can be used to your best advantage given some forthought. The best thing to have come out of it is that now we have s127 clearly back with quoteable rulings which is a biggy.

[sequenci]

So would it be more prudent for people to do the following (apologies if this idea has already been mooted):

 

1) Send a CCA request but keep paying

2) If the agreement is unenforceable make a s142 application

 

?

[haggis1984]

So would it be more prudent for people to do the following (apologies if this idea has already been mooted):

 

1) Send a CCA request but keep paying

2) If the agreement is unenforceable make a s142 application

 

?

 

Or perhaps an SAR for the agreement?

[angry cat]

Hmmm. Flashforward?

Why do I keep thinking slight of hand here. Was defining "enforceability" the true issue once they'd ascertained they had a sympathetic / gormless / half asleep / badly informed judge?

*delete which does not apply

 

I believe the case was specifically selected by RBS, they knew the case was weak and that the RBS Barrister(s) could persuade the Judge.

 

IMHO, Judges do not appear to have a clue about what is going on "out there". Perhaps, if they listened to the General Consumer (LIP) much could be learnt...

[sequenci]

Or perhaps an SAR for the agreement?

 

Oh, of course! If they cannot get it via the CCA then SAR for sure.

 

I guess that there are ways around this judgment. It'll just take a couple of extra months of waiting and paying.

[angry cat]

The Royal Bank of Scotland wrote the following in BOLD!

 

"Section 78(6) 'unenforceable' only prevents us from pursuing recovery of the debt through the courts."

 

AC

[sequenci]

Ac - Lmfao!

[angry cat]

Ac - Lmfao!

 

[Mistermind]

Obiter dicta

....an obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision. In a court opinion, obiter dicta include, but are not limited to, words "introduced by way of illustration, or analogy or argument."

Unlike the rationes decidendi, obiter dicta are not the subject of the judicial decision, even if they happen to be correct statements of law. Under the doctrine of stare decisis, statements constituting obiter dicta are therefore not binding, although in some jurisdictions, such as England and Wales, they can be strongly persuasive.

An example of an instance where a court opinion may include obiter dicta is where a court rules that it lacks jurisdiction to hear a case or dismisses the case on a technicality. If the court in such a case offers opinions on the merits of the case, such opinions may constitute obiter dicta. Less clear-cut instances of obiter dicta occur where a judge makes a side comment in an opinion to provide context for other parts of the opinion, or makes a thorough exploration of a relevant area of law. Another example would be where the judge, in explaining his ruling, provides a hypothetical set of facts and explains how he or she believes the law would apply to those facts.

In reaching decisions, courts sometimes quote passages of obiter dicta found in the texts of the opinions from prior cases, with or without acknowledging the quoted passage's status as obiter dicta. A quoted passage of obiter dicta may become part of the holding or ruling in a subsequent case, depending on what the latter court actually decided and how that court treated the principle embodied in the quoted passage.

Obiter dicta can be influential. One example in United States Supreme Court history is the 1886 case Santa Clara County v. Southern Pacific Railroad. A passing remark from Chief Justice Morrison R. Waite, recorded by the court reporter before oral argument, now forms the basis for the doctrine that juristic persons are entitled to protection under the Fourteenth Amendment. Whether or not Chief Justice Waite's remark constitutes binding precedent is arguable, but subsequent rulings treat it as such.

[AA99]

Ah! So this is where you've all been all day:D Give me half an hour to catch up with this thread:cool:

[sequenci]

Mistermind.. I'm simply wondering, have you a legal background? I hope you don't mind me asking?!

[AA99]

the creditors may think that this is a victory for them- however- those with more than half a dozen brain cells will have realised by now that in fact what they have suceeded in doing is LOSING the reporting aspect as a "Weapon" with which to beat the debtor

 

Once ONE creditor has F***ed up the debtors credit file- there is no reason why the debtor should not then take the view that as his credit rating is well and truly F***d already then threats by another one to do the same thing are no longer relevant

 

In fact it is a postive encouragement for the debtor to say to himself

 

OK if i am going to be F****d for 6 years- lets default on the whole goddam lot of them at the same time and get them all done and dusted

 

Smart move by the creditors/DCA's - i don't think so

 

That's what I've done:eek: Now, I can offer blood, sweat or tears

 

Please could somebody paste up a quickie for S127 and S142

[foolishgirl]

 

Please could somebody paste up a quickie for S127 and S142

 

What sort of a quickie do you want AA? (Please keep it clean! )

[shakespeare62]

What sort of a quickie do you want AA? (Please keep it clean! )

 

Thought you'd never ask !

[sequenci]

:rollseyes:

[angry cat]

Mistermind.. I'm simply wondering, have you a legal background? I hope you don't mind me asking?!

 

 

Please, can we keep all to crystal clear English Mistermind! (no offence intended)

 

The general consumer is not familiar with legalistic terms. Therefore, IMO it would be preferable if posts could be made without the use of court room jargon.

 

For the avoidance of doubt:

 

OBITER DICTUM

Obiter dictum is a legal phrase meaning a casual observation, for example something said by the judge, while giving judgement, that is not essential to the decision. Some obiter dicta have persuasive authority in future cases, depending on the seniority of the judge who made the remarks.

 

 

AC

[sequenci]

Please, can we keep all to crystal clear English Mistermind! (no offence intended)

 

The general consumer is not familiar with legalistic terms. Therefore, IMO it would be preferable if posts could be made without the use of court room jargon.

 

For the avoidance of doubt:

 

OBITER DICTUM

Obiter dictum is a legal phrase meaning a casual observation, for example something said by the judge, while giving judgement, that is not essential to the decision. Some obiter dicta have persuasive authority in future cases, depending on the seniority of the judge who made the remarks.

 

 

AC

 

I'm interested in all thing legal. I'm studying towards a Law degree [LLB(hons)] at Nottingham Law School

 

I appreciate that 95%+ of CAG users are laypeople, however!

[foolishgirl]

I'm interested in all thing legal. I'm studying towards a Law degree [LLB(hons)] at Nottingham Law School

 

Oh excellent, sequenci - what a star! Another pt in the making?

[sequenci]

Oh excellent, sequenci - what a star! Another pt in the making?

 

I dunno about that, PT is an absolute Ninja.

[angry cat]

I'm interested in all thing legal. I'm studying towards a Law degree [LLB(hons)] at Nottingham Law School

 

I appreciate that 95%+ of CAG users are laypeople, however!

 

My post was not directed at you sequenci and, I meant no offence to any party.

 

However, many CAG members may go into court as LIP's, therefore it is important that they fully understand the intricacies of the CCA before going into court.

Thus, posts that are laden with over complicated wording are not helpful...

only my opinion.