Unenforceability Cases on hold until further notice

[Undercover-Elsa]

Don't get your coat Heliosfa

Good post.

[haggis1984]

Id agree with your interpretation of enforcement heliosfa - if the lawmakers intended enforcment to be as narrowly defined as seeking payment why not just state this?

 

And it would seem that the enforcement of an agreement should mean they enforcement of any terms in that agreement. Including the addition of interest and charges and sharing info with 3rd parties.

 

In order to share info with 3rd parties (CRAs) the creditor relies on the 'sharing info with 3rd parties' term in the agreement. If acting on the specific terms of an agreement doesnt qualify as enforcement what the hell does?!

 

Mind boggling!

[the main man]

Bennions quotes on the Rankine Judgement just about sum it up as far as to what opinion is on CMC's

 

Francis Bennion - This sort of thing was not what was intended by those responsible for the enactment of the CCA. As Judge Mason points out, the Act was introduced to protect the individual who is unsophisticated in financial affairs and contracts with unscrupulous and sophisticated financial institutions. “It was not designed to help individuals in the financial services business make money out of financial institutions through exploiting its undoubted technicalities.”

 

 

I can see very little being conceded to add to what is already there:(

[letitbeme]

This is only one case, I'd imagine some how it's going to be Appealed either way.

 

Yep! One down and ninety nine thousand nine hundred and ninety nine to go.

Some of the Manchester cases on the 8th Oct have similar arguments, so the fight continues.

Only this time the Credit Card Agreements are clearly unenforceable.

[Undercover-Elsa]

Francis Bennion - This sort of thing was not what was intended by those responsible for the enactment of the CCA. As Judge Mason points out, the Act was introduced to protect the individual who is unsophisticated in financial affairs and contracts with unscrupulous and sophisticated financial institutions. “It was not designed to help individuals in the financial services business make money out of financial institutions through exploiting its undoubted technicalities.”

 

Based on that maybe we are all the victims of our own nouveau knowledge. Would we be better served by shuffling mumbling and bumbling into the Courts, wringing our cloth caps and touching our forelocks (I said forelocks) to the illustrious judge, pleading (in an unsophisticated way) for mercy?

We've been doing it all wrong

[mkb]

1. That conclusion is reinforced by the second reason, which concerns the practical difficulties which the qualifications which Mr Moran proposes would place upon the bank. In his second witness statement Mr David Black (like Mr Todd, a member of the Infrastructure and Business Intelligence team at the bank) addresses those difficulties. The reporting is by electronic means and the CRAs have no status code for recording the fact that an agreement is unenforceable. No previous suggestion or request has been made to the bank to report an agreement as unenforceable.
   
2. Third, as Mr Handyside points out, section 159 of the 1974 Act provides the claimant with his own means of requiring the CRAs to note his credit record. That section gives the claimant a statutory right to require CRAs to mark his records with a notice of correction. Thus, he could serve a notice on the CRAs under section 159(3) requiring them to add a statement to his records that the agreement is unenforceable during the period of non-compliance under section 77. It would then be for them to mark the records accordingly or apply to the Information Commissioner for an order relieving them of any obligation to do so on the grounds that such a statement was incorrect, frivolous or unsuitable. Given the availability to the claimant of these remedies of self-help if so inclined, I can see no practical utility in granting the injunction sought.
   

And of course the CRA's will ask the bank who will say no, the claimant is wrong, of course he is cos we are the bank & therefore must always be found to be correct!

 

IMO this decision smacks of collaboration between the bank & HJ Flaux (maybe HJ Flaux is a shareholder with RBOS)

[letitbeme]

Just one question!

 

Who proposed that this case be a lead test case?

Oops!

Shouldn’t skim read

His Honour Judge Halbert of his own motion referred this case to the Commercial Court in London with a view to its being determined by the Commercial Court as a test case. By order of Andrew Smith J on 25 June 2009, the case was transferred to the Commercial Court and directions for trial were given, including that it should be listed for trial before me on 23 and 24 September 2009.

Edited October 6, 2009 by letitbeme

[letitbeme]

IMO this decision smacks of collaboration between the bank & HJ Flaux (maybe HJ Flaux is a shareholder with RBOS)

 

Well the Bank knew that the CCA and the unenforceability issue had been resolved, I would also assume that Judge Andrew Smith was aware. So why didn’t Judge Andrew Smith refer the case back to Chester and request a more suitable LEAD TEST CASE.

[mkb]

We have 4 guests looking in.

[car2403]

I don't think it's a question of why this as a test case, as it clears up an important concern for many people. (Should it not be appealed and altered at a later date )

 

The thing to not lose sight of is that this is only one case, which seems to turn on it's own merits, (Rankine, anyone? ) so unless this is your specific situation, it means bot all to you.

 

Only thing I'm saying is that a CAGger posting about this case would have been told most of what is in that Judgment before bringing the claim, so probably wouldn't, IMHO. Most of it is quite straight forward.

 

All we have to watch out for now is the "abuse" of the assumptions made in it - if we see this being quoted where it's irrelevant, it will be important to distinguish your claim from this Judgment sufficiently, so it can be filed in the great filing cabinet in the sky, rather than scupperring your chances.

 

As happened with Rankine...

[haggis1984]

I don't think it's a question of why this as a test case, as it clears up an important concern for many people. (Should it not be appealed and altered at a later date )

 

The thing to not lose sight of is that this is only one case, which seems to turn on it's own merits, (Rankine, anyone? ) so unless this is your specific situation, it means bot all to you.

 

Only thing I'm saying is that a CAGger posting about this case would have been told most of what is in that Judgment before bringing the claim, so probably wouldn't, IMHO. Most of it is quite straight forward.

 

All we have to watch out for now is the "abuse" of the assumptions made in it - if we see this being quoted where it's irrelevant, it will be important to distinguish your claim from this Judgment sufficiently, so it can be filed in the great filing cabinet in the sky, rather than scupperring your chances.

 

As happened with Rankine...

 

Agreed - they amount of times ive been fobbed of by some automon quoting rankine when the issues I have with MBNA are completely unrelated beggars belief. The only way this judgement can do consumers any real harm is when its quoted irrereverently.

[letitbeme]

On a point of Law

Within the terms and conditions of a CCA there is a section that states:-

IMPORTANT – DATA PROTECTION

Before you sign this agreement you should read Condition 14 (Hypothetical No.) in the Terms & Conditions provided. You agree that we may process, use, record and disclose Personal information as described in Condition 14. etc. etc.

Condition 14

· We will process and record information about you to: search credit reference and fraud prevention agencies' records (including information from overseas). Etc. etc.

If a creditor cannot produce a credit card agreement with your signature on it, then it must follow that they do not have your permission to process your personal data.

Also, if they do produce a CCA and it is subsequently found to be none compliant with the Consumer Credit Act (Unenforcable), dose this also negate them from processing your data?

[car2403]

On a point of Law

Within the terms and conditions of a CCA there is a section that states:-

 

IMPORTANT – DATA PROTECTION

Before you sign this agreement you should read Condition 14 (Hypothetical No.) in the Terms & Conditions provided. You agree that we may process, use, record and disclose Personal information as described in Condition 14. etc. etc.

 

 

Condition 14

 

· We will process and record information about you to: search credit reference and fraud prevention agencies' records (including information from overseas). Etc. etc.

 

If a creditor cannot produce a credit card agreement with your signature on it, then it must follow that they do not have your permission to process your personal data.

 

Also, if they do produce a CCA and it is subsequently found to be none compliant with the Consumer Credit Act (Unenforcable), dose this also negate them from processing your data?

 

I think this is one of the issues being tested, here.

 

IMHO, yes, as it's unfair to allow a Creditor, under an unenforceable agreement to process data with CRA's. There is no obligation that means repayments have to be made. We can go back to the "gift" scenario under the CCA. (Discussed on other threads) Plus the ICO seems to think this is the right approach, also.

 

We'll have to see.

[Mistermind]

Was hoping to get some of my defaults removed...

Were you encouraged by any posting to take this to court?

[Kraken1]

Even if it didn't, it's arguably unfair under the UTCCR 1999 to allow a Creditor to report an unenforceable debt, as there is no legal obligation to repay

 

I'm not sure I agree - it is not about an obligation to repay but a record that a debt exists that has not been repaid, providing there is proof of the debt, of course. I don;t think that the court would ever decide differently on this in the absence of evidence of severe and intentional prejudice through the reporting alone and providing that such was the only intent. Where others may 'benefit' from the decision then I can see the logic.

 

Re enforceability: I'm basing my comments only on the comments made in this thread, I've yet to read the judgment, but I don't (or didn't...?*) agree that enforcement was only actual legal action. the OFT v Foxtons case seemed to also take the view that enforcement was also writing letters etc. I can see the view but now I'm a tad confused. I see the attraction of the argument but also see that some actions are a means to an end and that it is misleading to imply an end, through means, if that end is not possible. If that makes sense...

 

 

*my opinions are often based on stated law and statute and the interpretation of such and therefore I can't really say that I don't agree if they've been as clear as the posters above seem to think then I perhaps need to revisit my opinion...hmmm...confusing :/

[foolishgirl]

This does seem a particularly 'odd' case on which to apply to the Commercial Court for a decision as the agreement was actually enforceable & one does wonder if the barrister for the claimant was clutching at straws to justify his cause. That said, I think you can probably sum up this judgment & its implications for any other case in Justice Flaux's own words

 

'76. However, nothing in either sections 76 or 87 can be said to give one any real clue as to the parameters of the concept of enforcement, for the purposes of determining what, if any, action by the creditor is permissible during the period when the agreement is unenforceable by virtue of section 77(1)...'

 

i.e. nothing changed...

[angry cat]

After being out all day, I arrived home and logged on to find out what the result was.

I then printed off the judgement, sat down with a cup of tea and started reading.

 

The only comment that I can make is;

 

I am surprised that such a weak case ended up in the high court as a test case!? RBS, never cease to amaze me!

 

Not surprised by the pitiful result...

[haggis1984]

I'm not sure I agree - it is not about an obligation to repay but a record that a debt exists that has not been repaid, providing there is proof of the debt, of course. I don;t think that the court would ever decide differently on this in the absence of evidence of severe and intentional prejudice through the reporting alone and providing that such was the only intent. Where others may 'benefit' from the decision then I can see the logic.

 

Re enforceability: I'm basing my comments only on the comments made in this thread, I've yet to read the judgment, but I don't (or didn't...?*) agree that enforcement was only actual legal action. the OFT v Foxtons case seemed to also take the view that enforcement was also writing letters etc. I can see the view but now I'm a tad confused. I see the attraction of the argument but also see that some actions are a means to an end and that it is misleading to imply an end, through means, if that end is not possible. If that makes sense...

 

 

*my opinions are often based on stated law and statute and the interpretation of such and therefore I can't really say that I don't agree if they've been as clear as the posters above seem to think then I perhaps need to revisit my opinion...hmmm...confusing :/

 

I had a clumsy attempt at the UTCCR argument in another thread:

 

Could the term allowing creditors to share info with 3rd parties term be an UTCCR?:

 

 

A term is unfair if:

contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

 

http://www.oft.gov.uk/shared_oft/bus...rms/oft143.pdf

 

Page 3:

 

Paraphrased: 'Stops consumers making certain legal claims against the business.'

 

Page 4 - Terms that may be unfair:

 

'Consumers being tied into the contract unfairly;

'The business not having to perform it's obligations' (ie. s.77-78 requests)

 

It seems that creditors routinely use their right to process info with CRAs in an attempt to prevent consumers excercising their s.77-78 CCA rights - issuing defaults, marking missed payments when they have failed to satisfy a CCA request.

 

Another argument for the UTCCR angle is the subsantial benefit to organisations not party to the original agreement (future creditors, employers, utilities etc etc). In the event of payment being witheld by the debtor following an unsatisfied CCA request and the creditor marking missed payments with CRAs this 3rd party benefit is detrimental to the debtor.

[Mistermind]

Even if it didn't, it's arguably unfair under the UTCCR 1999 to allow a Creditor to report an unenforceable debt, as there is no legal obligation to repay

 

But might not the other side say, their purpose in creditors passing info onto CRA was not to collect on a dubious debt, but to warn other lenders about a known bad risk.

 

Debtors do share info about judges and institutions and barristers, naming names, for the sake of mutual advantage. Not necessarily to appeal against a foregone verdict of defeat with hopes to collect on a claim as opposed to a debt. When there is no chance of success is there no permission to share info, not even on CAG?

[Tricky Dickie]

After being out all day, I arrived home and logged on to find out what the result was.

I then printed off the judgement, sat down with a cup of tea and started reading.

 

The only comment that I can make is;

 

I am surprised that such a weak case ended up in the high court as a test case!? RBS, never cease to amaze me!

 

Not surprised by the pitiful result...

 

I thought the same thing the first two times I read it however correct me if I am wrong but I can find nowhere in the judgement where it says the agreement was enforceable.

Paragraphs 13 and 14 read.

 

13. Correspondence ensued in which MJP threatened proceedings for a declaration of unenforceability by the court if a copy of the agreement were not produced within 28 days and for an injunction if the claimant's credit rating were affected. By 11 May 2009, the bank had located a copy of the agreement and wrote to MJP enclosing it and stating that recovery action would now continue. Through inadvertence, the bank overlooked that it had not provided a signed statement of account as required by section 77(1).
     
    
14. Although collection activity had recommenced, on 13 May 2009 the bank ascertained that the claimant had issued these proceedings and accordingly, collection activity ceased again. That has remained the position since, apart from one letter dated 15 May 2009 sent by Capquest by mistake. Although the bank could easily provide a signed statement of account so as to render the agreement enforceable once again under section 77(4), because the default would have been rectified, it has not done so, quite properly (as the claimant accepts) so as to ensure that there remains a lis between the parties enabling the court to determine the issues which have arisen.
    

So the bank mistakenly didn't send a signed copy of the agreement (as usual) and then asserted it had the signed document and therefore the agreement is enforceable which appears to have been accepted.

Surely the issue of enforceability has not been resolved until a signed copy is produced which nfrom what I can read has not yet happened.

I do not understand the term lis however the issues of this particular case now seem to be resolved by the judgement which presumably means the issue of enforceability can be pursued seperately now.

It would appear that the enforceability issue in thi case has been sidetracked by the issue of the reporting of missed payments to CRAs which I am sure is exactly as RBS would like it to be.

I recall that at the case conference in Chester in May the banks were very keen to pursue the right to continue to report debtors to the CRA's and it was RBS that specifically requested this case to be heard in the high court

[paulwlton]

After being out all day, I arrived home and logged on to find out what the result was.

I then printed off the judgement, sat down with a cup of tea and started reading.

 

The only comment that I can make is;

 

I am surprised that such a weak case ended up in the high court as a test case!? RBS, never cease to amaze me!

 

Not surprised by the pitiful result...

 

Not sure if a case involving an unenforceable agreement would have altered the outcome.

[enoughisenough]

As a test case this tests virtually none of the main areas of concern. In fact it tests the rather narrow Rankine principle of a claimant coming before a court with less than clean hands and seeing how far this kite can be flown. Really.

 

I hope that the other cases due for so called tests aren't similarly flawed. If they are it's a whitewash for the banks. We will know different though. This has already been forensically dissected within hours. Is anybody able to pick out the obiter that supports the consumer consensus on these issues. I notice at least one post above that has done so. I can't do this at the mo as I'm using a phone but I will try to get going tomorrow.

 

Keep the faith. EiE.

Edited October 6, 2009 by enoughisenough

[angry cat]

Not sure if a case involving an unenforceable agreement would have altered the outcome.

 

But a case involving other matters, may have...

 

The case was weak and should not have been put forward as a test case!

[Mistermind]

 

correct me if I am wrong but I can find nowhere in the judgement where it says the agreement was enforceable.

 

Para 17:

Mr Moran for the claimant accepted in opening that in some respects the present case was not as appropriate a test case as others might have been, for example because it is a case where, on any view (and as the claimant accepts) the agreement was valid and enforceable until 11 March 2009 (the date when the 12 day period for compliance with a demand under section 77(1) expired). Furthermore, by virtue of section 77(4) the agreement will be valid and enforceable again once the bank has provided the claimant with a signed statement of account.

[angry cat]

Without doubt, not a suitable test case!