Unenforceability Cases on hold until further notice

[haggis1984]

Didnt the judge accept that the reporting of info with CRAs was for the purposes of providing information to future creditors, NOT for the purposes of debt recovery? And wasnt this the main reasoning behind sharing info with CRAs not being deemed 'enforcement?'

 

From http://www.consumeractiongroup.co.uk/forum/credit-reference-agencies/112671-cag-cra-r-club-25.html

 

 

 

and from CallCredit's application form for a copy credit file:

 

 

Quote:

We and other organisations may also access and use this infor-

mation to prevent fraud and money laundering, for example,

when: checking details on applications for credit and credit-

related or other facilities; managing credit and credit-related

accounts or facilities; recovering debt; checking details on pro-

posals and claims for all types of insurance; checking details of

job applicants and employees.

[Demonbarb]

Aren't there another 20 odd cases to be still heard on various matters? This is one case which the judge acknowledged was not a good one to be a test case. Let the lenders have their day as they will bleat about this and misinterprate it for their own ends until the next result which may go against them no point getting all uptight about it.

[angry cat]

DD, it actually states at the begining of the Judgement:

"...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."

 

However, I would concur that your following comment may be of merit and significant:

by DD:

"RBS legal representative asked for this one to be heard."

 

I bet he did!!!

 

AC

[Sammythebest]

Screw tightens on claims management firms - 08/10/2009

 

Royal Bank of Scotland has secured a victory in a consumer credit case that a law firm said will "tighten the screw" on claims management companies’ practices.

 

Mr Justice Flaux found in favour of RBS in its case against Phillip McGuffick who sought to declare that a £17,000 loan from the bank was irredeemably unenforceable under sections 61 and 127 of the Consumer Credit Act 1974.

 

But in the Commercial Court, at the Royal Courts of Justice, it was concluded that claimants seeking to prove their credit agreements are unenforceable under the Act are still liable for monies owed.

 

During the case it emerged that only two repayments were made to RBS between August 2006 and May 2007, when 10 monthly payments of £346 were due. Since June 2007, the total amount owed has been £15,066.

 

The account was referred to Callcredit, Experian and Equifax and the debt recovery process was referred to Apex Credit Management, but to no effect. It was then referred to Capquest but again no repayments were made.

 

The claimant’s solicitors, MJP Justice, then wrote to the bank in February this year to dispute the credit agreement on the grounds that no reference was made to credit reference agencies in the original agreement.

 

MJP asked for documents relating to the original loan agreement and argued that while the debt was in dispute, no enforcement action could be taken. RBS has received hundreds of similar requests from solicitors and claims management firms for the same purpose.

 

But Mr Justice Flaux ruled that the claimant could not prevent RBS from making reports of the claimant’s non-payment to the credit reference agencies (CRAs). The court was asked whether the passing of information to the CRAs breached data protection law, but the court found the sharing of information to be lawful and legitimate.

 

The case was referred to the Commercial Court with a view to define and clarify the meaning of enforcement in the context of the Consumer Credit Act.

 

Law firm Eversheds said the case succeeded in doing so and it will be "invaluable" to all lenders now dealing with challenges to the enforceability of agreements.

 

The court decided that bringing legal proceeding is only a step taken with a view to enforcement and not actually enforcement. Consequently, steps taken before proceedings start, including demanding payment and threatening legal action, cannot be enforcement.

 

The court also found that demanding payment, issuing a default notice, threatening legal action and bringing legal proceedings did not constitute enforcement either.

 

Chris Busby, partner at Eversheds, said: "The decision undermines the practice of panel solicitors at claims management companies selling their services based on identifying unenforceable credit agreements. CMCs should now be warning customers that running these arguments and ceasing repayment of loans will have an adverse impact on credit ratings."

 

Claims management firm Cartel Client Review, which was not involved in the RBS case, called on the Ministry of Justice to review how claims management companies are regulated.

 

Carl Wright, chief executive of Cartel, said: "I believe the MoJ should hold a joint consultation with leading financial claims management companies to agree a set of standards that can be implemented across the industry to protect and better inform consumers."

[Tricky Dickie]

I am not currently informed enough to comment on the specific case here (although it doesnt sound right at all and the waters have been muddied further), however, I have recently sent CCA requests to banks.

 

What I want to know is, how does this affect people challenging the validity of their credit agreements, does it simply mean you should continue to make payments until the question of whether the agreement is enforceable has been answered? If it is enforcable, pay as normal, if it is found not to be, should payments then be withheld?

 

If you make payments as required, they cant note your credit file with adverse information can they?

 

If you make payments as required they can't default you or note your credit file with adverse information .

If your agreement is not enforceable and you formally advise the lender the agreement is in dispute and you then stop paying then according to the judge in this case during the period of dispute the correct thing for the lender to do is to not to try to enforce the debt or take legal action against you.

In the McGuffick case the agreement proved to be enforceable ( or at least all parties agreed it was enforceable-if I was McGuffick I would want it looked at again as I would have no confidence in their opinion) so I don 't how this case will affect what the conduct of a lender should be in the case of an unenforcable agreement but irrespective of the fact that the agreement is in dispute,the vast majority of lenders will issue a default notice,report you to CRA's and threaten you with legal action.Some may even take action against you regardless of whether the agreement is disputed or not

[along]

There's moral considerations to be made there.

 

If you continue paying, you're effectively acknowledging the debt each time, therefore can't legitimately dispute the enforceability of it - "well, you've been repaying it all these years", a Judge will say.

 

On the other hand, if you don't pay you will be Defaulted - enforceable or not, and this Judgment will be used against lesser minded mortals that don't know their rights.

 

Also, if you don't pay and they don't take you to Court, what are you going to do? Live with a Default that is inaccurate for 6 years? No way, Jose...

 

So is there no answer? What are people meant to do? Seems a no win situation even asking for a copy of the agreement now.

 

I can see the moral side of the argument you put but in my case and many others - I am worried about my financial situation as a result of rising unemployment and the crash in the housing market, I want to know my rights with respect to unsecured debt and if the banks have done something wrong - thats not my fault, they get paid to do things right - I have already paid what I borrowed in interest and charges so I am just a cash cow now ! I can afford to make minimum payments at the moment - so I do - Does that not say that I am doing all in my power to meet my commitments? I am simply more than a little worried I cant do it forever.

 

As for your last comment - the honest answer is I dont know - however, will they not accept reduced settlements if the agreements are unenforceable?

 

The more I read on the subject, the more it seems that challenging an agreeement is a bad idea. For example - best case, you find out it is unenforceable - what can you then do?

dont pay - it gets chased by debt collectors and your credit file is shot. or

pay and if go to court its payable anyway as you have recognised it.

 

I am confused.

[angry cat]

Every case is different, one has to weigh up what is best for each...

[sequenci]

'The court also found that demanding payment, issuing a default notice, threatening legal action and bringing legal proceedings did not constitute enforcement either. '

 

This is blantantly incorrect - Im certain that the judge stated RBS has acted appropriately during the period of non-compliance with s77 precisely because they didnt take these actions.

 

None of the above are technically 'enforcement' though?!

[mikek]

So basically the court takes the narrow view that enforcement = acquiring a court order to compel repayment.

 

Everything else the banks and DCA do to you (harassment, blackmail, threatening, damaging your credit record etc) are perfectly fine even under a non legally binding contract?

[the_shadow]

None of the above are technically 'enforcement' though?!

 

Though you have to say if by default of s78/77 the lender is unable to enforce... and yet take you to court and obtain a judgment against you (which this ruling seems to indicate isnt enforcement actions) isnt that the very enforcement that they were barred from taking by the act in the first place?

 

Or am I just confused

 

S.

[Demonbarb]

So is there no answer? What are people meant to do? Seems a no win situation even asking for a copy of the agreement now.

 

I can see the moral side of the argument you put but in my case and many others - I am worried about my financial situation as a result of rising unemployment and the crash in the housing market, I want to know my rights with respect to unsecured debt and if the banks have done something wrong - thats not my fault, they get paid to do things right - I have already paid what I borrowed in interest and charges so I am just a cash cow now ! I can afford to make minimum payments at the moment - so I do - Does that not say that I am doing all in my power to meet my commitments? I am simply more than a little worried I cant do it forever.

 

As for your last comment - the honest answer is I dont know - however, will they not accept reduced settlements if the agreements are unenforceable?

 

The more I read on the subject, the more it seems that challenging an agreeement is a bad idea. For example - best case, you find out it is unenforceable - what can you then do?

dont pay - it gets chased by debt collectors and your credit file is shot. or

pay and if go to court its payable anyway as you have recognised it.

 

I am confused.

But this case was about an enforceable agreement and if the lender could register a default aginst the borrower who didn't pay whilst it was in dispute. It isn't about a borrower with an irredeemingly unenforceable agreement and the challenging of these hasn't been affected as far as I can see. If a court deems your agreement is unenforceable I do not think this judgement can be used to get a default against you if you then stop paying as the courts has said it is unenforceable. The issues are separate and further test cases will establish the full picture not just one in isolation.

[angry cat]

http://business.timesonline.co.uk/tol/business/industry_sectors/banking_and_finance/article5545383.ece

 

I find any suggestion that RBS were a responsible lender; laughable!!

 

"Considerations about the affordability of a product or amount (the consumer's ability to repay) and the likelihood of repayment (the consumer's level of risk) are a key and central part of most mainstream lending."

 

The question that must be posed;

did RBS actually check all applicants Credit Files, when they were actively selling their products from the late 90's to the early 2000's?

 

Answer, no they did not!

 

All that they were interested in, at that point in time, was selling money and associated products.

 

Now, it would appear that RBS are claiming to be above repute and using the CRA's Credit File as a tool; a coercive tool.

 

SHAME ON THEM.

 

AC

[diddydicky]

DD, it actually states at the begining of the Judgement:

"...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."

 

However, I would concur that your following comment may be of merit and significant:

by DD:

"RBS legal representative asked for this one to be heard."

 

I bet he did!!!

 

AC

 

noted- but not sure i ever made that comment!

[Tricky Dickie]

DD, it actually states at the begining of the Judgement:

"...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."

 

However, I would concur that your following comment may be of merit and significant:

 

 

noted- but not sure i ever made that comment!

 

It was me who made the comment People are always getting us confused but two dickies are better than one!

[shakespeare62]

Correct!

 

There is a House of Lords decision which binds every court in which it was not considered. The case is Wilson & others v Secretary of State for trade and industry [2003] UKHL 40 at paragraph 31 of that judgment Lord Nicholls of Birkenhead says that entering Judgment is enforcement. Logically if entering judgment is enforcement then issuing proceedings must be.

 

If the judge in the Royal Courts of Justice was not addressed on the case of Wilson, then he did not consider the authority.

 

Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003)

[Docman]

I think he did but dismissed Wilson on the basis that it was about the effect of the Human Rights legilsation and that therefore the remaining parts of Wilson were merely 'obiter dicta' and therefore not binding on him.

 

In my view, the judge took a very narrow interpretatation on a very weak case. I can't help wondering if RBS did a deal to put forward such a weak case brought by a QC who was NOT a specialist in the area.

[angry cat]

DD, it actually states at the begining of the Judgement:

"...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."

 

However, I would concur that your following comment may be of merit and significant:

 

 

noted- but not sure i ever made that comment!

 

My apologies DD.

 

by TD:

 

 

 

Halbert did not refer this case to the Commercial Court of his own motion,at the case conference in Chester in May he asked ther assembled legal teams to propose cases to be heard and RBS legal representative asked for this one to be heard.There was no objection from the claimants legal representative so Halbert refered it.

Maybe the claimants solicitor should have objected?"

 

The claimants Counsel should have objected!

[angry cat]

I think he did but dismissed Wilson on the basis that it was about the effect of the Human Rights legilsation and that therefore the remaining parts of Wilson were merely 'obiter dicta' and therefore not binding on him.

 

In my view, the judge took a very narrow interpretatation on a very weak case. I can't help wondering if RBS did a deal to put forward such a weak case brought by a QC who was NOT a specialist in the area.

 

RBS do a deal?

 

Now there is a thought...

[diddydicky]

DD, it actually states at the begining of the Judgement:

 

 

It was me who made the comment People are always getting us confused but two dickies are better than one!

 

lol:D

[Mistermind]

 

What is interesting about that, though, TD, (which I mentioned earlier, too) is that all my challenges regarding enforceability under the CCA resulted in the remaining outstanding balances being written off, so the Creditors then claimed that there was no obligation to provide copy documents under the CCA as there was no amount owing.

 

This Judgment, IMHO, is going to be used in those instances, where we challenge data recorded with CRA's in that instance - IMHO, they can't report an inaccurate repayment history, (back to DPA issues, but that's another thread and is covered elsewhere) where there never was a legal obligation to repay the debt in the manner agreed.

 

I think this is the issue that this Claimant has focussed on, incorrectly - he should have went for Default removal on the basis that the agreement was unenforceable, which is what I did. (Search "car2403" in thread titles to see my threads) Of course, though, with an enforceable agreement, his point was moot, as they could have just Defaulted him after complying with the Copy Document regs, which is why this is such a bad press for unenforceable agreement claims.

 

 

I believe the defeated claimant wanted the ruling:

 

CRA black mark is unlawful until a disputed agreement is proven enforceable.

 

Instead the judge made the ruling:

 

CRA black mark is lawful until a disputed agreement is proven irredeemably unenforceable.

 

In a position of unproven eventuality the judge gave the card issuer the benefit of the doubt. As to why car2403 has now run out of adversaries, I believe they all took one look and decided car2403 is such a natural lawyer they preferred easier fights and pickings elsewhere.

 

A really interesting legal point would be raised, if a claimant received a DN, then paid off the entire debt. Afterwards he comes to court to point out retrospectively that the agreement was inadmissible or lost. There is no longer any debt for the court to enforce, there is only a dispute on the enforcement of non-debt rights and obligations, i.e. the rescinding of the DN and black mark.

 

Will the judge limit himself only to the monetary enforcement of outstanding debt?

[Ruprecht]

Does anyone know if the cases in Manchester went ahead today?

 

I think it was just going to be a case management conference so I doubt we can expect anything juicy yet.

 

I am thinking if an agreement is irredeemably unenforceable they shouldn't be able to issue a default notice should they?So it follows they shouldn't report a default has occurred on the credit file.

The Statutory Regulations have in the wording for a default notice as "further enforcement action will be taken". That definately implies that the default notice is enforcement action and the people who drafted the regulations also considered and defined it so.

 

Why has nobody put that to a judge yet? If someone went for an order under the DPA 1998 that the record wasn't accurate as no default occurred under the CCA1974, I don't see how they could defend it.

 

Then again if they can report payment history anyway a row of 6,6,6,6,6,6,6,6,6,6,6,6,6 as payment history is just as bad anyway.

 

At least you'd get to annoy them a little though and it might disappear altogether as a result of that process!

[Kraken1]

I am thinking if an agreement is irredeemably unenforceable they shouldn't be able to issue a default notice should they?So it follows they shouldn't report a default has occurred on the credit file.

 

My reading of it is that if they can prove that there was an agreement/loan/credit card etc then they can report to the CRA as such is not enforcement.

[diddydicky]

you are IMO absolutely right!

 

the wording of a DN refers to "further enforcement action" therefore clearly intimating that creditor believes the DN itself to be "enforcement action" for if it were not then the reference to "further enforcement action" would be meaningless

[sequenci]

I am thinking if an agreement is irredeemably unenforceable they shouldn't be able to issue a default notice should they?

 

I'm not so sure, I would imagine it would be down to the debtor to raise any unenforceability issues

So it follows they shouldn't report a default has occurred on the credit file.

The Statutory Regulations have in the wording for a default notice as "further enforcement action will be taken". That definately implies that the default notice is enforcement action and the people who drafted the regulations also considered and defined it so.

interesting point!

[car2403]

Though you have to say if by default of s78/77 the lender is unable to enforce... and yet take you to court and obtain a judgment against you (which this ruling seems to indicate isnt enforcement actions) isnt that the very enforcement that they were barred from taking by the act in the first place?

 

Or am I just confused

 

S.

 

I think so Shadow

 

The Court can only issue Judgment on the issues raised in the claim. In this instance, the question being asked is "should a Creditor be able to Default a debtor when they are in breach of their obligations to supply copy documentation under s.77/s.78?" - the Court decided that they can, simple. Judgment for the Defendant, on the issues raised.

 

The issue of enforceability of the agreement wasn't raised, as, it seems, it was universally agreed that the agreement was enforceable. This is where the confusion starts, for all of us, so get on that band wagon

 

As the enforcement of the agreement wasn't in question, then, the Judgment given here can't be considered to apply to instances of where a Creditor has sought Judgment on the debt - that is clearly enforcing the agreement, but wasn't an issue to be decided, here.

 

The question raised was that of a Creditor recording a Default against the Debtor while in default of the CCA request, only, so that is all it applies to.

 

HTH. (Maybe I've just confused you some more? :confused::confused:)

 

I believe the defeated claimant wanted the ruling:

 

CRA black mark is unlawful until a disputed agreement is proven enforceable.

 

Instead the judge made the ruling:

 

CRA black mark is lawful until a disputed agreement is proven irredeemably unenforceable.

 

I don't even think this Judge went that far, for the reasons I've stated above - the question of enforceability weren't even raised

 

In a position of unproven eventuality the judge gave the card issuer the benefit of the doubt. As to why car2403 has now run out of adversaries, I believe they all took one look and decided car2403 is such a natural lawyer they preferred easier fights and pickings elsewhere.

 

[Where's the "shy" emoticon, then?]

 

There's plenty of adversaries - only they aren't my creditors, but that of lots of other CAGgers that we've took on and won. I see what you mean though. I do wonder if I'm on some debt blacklist, because of my adventures to date, though!

 

A really interesting legal point would be raised, if a claimant received a DN, then paid off the entire debt. Afterwards he comes to court to point out retrospectively that the agreement was inadmissible or lost. There is no longer any debt for the court to enforce, there is only a dispute on the enforcement of non-debt rights and obligations, i.e. the rescinding of the DN and black mark.

 

Will the judge limit himself only to the monetary enforcement of outstanding debt?

 

Er, been there, done that...

 

http://www.consumeractiongroup.co.uk/forum/high-street-stores/110148-car2403-ge-capital-bank.html

 

Short(ish) version: agreement enforceable with a Court order only, but no order sought when they Defaulted me. Held: Defaulting me wasn't "enforcement", so no Court order was needed, had they wanted an Order, the Court would have given them one, so I still end up with a Default. This was after I challenged the original notice because it contained penalty charges, they had the balls to rescind it by refunding the charges (and interest) and issuing another (effective) Default notice. I played their game back and paid the whole balance of the debt off before the Notice expired. Still held that the Default recorded was accurate. It's settled and drops off in January 2010.