Unenforceability Cases on hold until further notice

[sequenci]

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

only my opinion.

 

And a tremendously valid one at that

[pedross]

This is the main key to the whole decision and why they can report to the CRA's

 

6. — (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject

 

 

The Judge said:

In that context it is significant that the ICO (whom the bank's solicitors consulted) take the view set out in their email of 14 July 2009, that it is appropriate for CRAs to record information about unenforceable regulated credit agreements because, amongst other reasons, such information may properly inform responsible lending decisions, irrespective of whether the liability of the debtor is enforceable and responsible lending decisions are dependent upon lenders receiving accurate information about the ability and/or inclination of individuals to repay their debts. These are the same considerations as lie behind the Irresponsible Lending Project of the OFT.

 

Pedross says:

The agreement is unenforceable and therefore the liabilty of the debtor is also. We now have the option of repaying the debt anyway if we can and if we cannot or do not want to the Judge has decided it is only fair that the facts are reported to notify other lenders of our ability/inclination to pay.

 

Those were the facts before the hearing and they still are now and I can understand the argument. The CRA's are there to help lenders make responsible lending decisions and if they had taken notice of the reports we would not have had a sub prime mortgage crisis.

 

However, in many circumstances the 'debtor' will have no liability and defaults have been used far to easily in the past as a punishment tool. Therefore, we just need to prove that in our case it is not warranted and we have the following on our side: except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

Thats a whole new post of its own and in the case in question I do not believe that the claimant could argue that.

 

Pedross

[AA99]

ORRRDEEEEEEEEEEEER IN THE COURT! With respect, m'luds, I refer explicitly to the questioned references in the quotes aforegone within this thread :D:D

 

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 best thing to have come out of it is that now we have s127 clearly back with quoteable rulings which is a biggy.

 

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

 

[AA99]

This is the main key to the whole decision and why they can report to the CRA's

 

6. — (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject

 

 

The Judge said:

In that context it is significant that the ICO (whom the bank's solicitors consulted) take the view set out in their email of 14 July 2009, that it is appropriate for CRAs to record information about unenforceable regulated credit agreements because, amongst other reasons, such information may properly inform responsible lending decisions, irrespective of whether the liability of the debtor is enforceable and responsible lending decisions are dependent upon lenders receiving accurate information about the ability and/or inclination of individuals to repay their debts. These are the same considerations as lie behind the Irresponsible Lending Project of the OFT.

 

Pedross says:

The agreement is unenforceable and therefore the liabilty of the debtor is also. We now have the option of repaying the debt anyway if we can and if we cannot or do not want to the Judge has decided it is only fair that the facts are reported to notify other lenders of our ability/inclination to pay.

 

Those were the facts before the hearing and they still are now and I can understand the argument. The CRA's are there to help lenders make responsible lending decisions and if they had taken notice of the reports we would not have had a sub prime mortgage crisis.

 

However, in many circumstances the 'debtor' will have no liability and defaults have been used far to easily in the past as a punishment tool. Therefore, we just need to prove that in our case it is not warranted and we have the following on our side: except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

 

Thats a whole new post of its own and in the case in question I do not believe that the claimant could argue that.

 

Pedross

 

Shame they don't refer more to these credit reference agencies more often when they want to lend you the money:-x Irresponsible lending springs to mind besides the fact that 'once hooked', they will try to reel you in at any cost:-o

[car2403]

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.

 

Just catching up with the last 3 pages () but I agree entirely with this post

[citizenB]

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?

 

Information Commissioners Office will not force a creditor/bank to give a CCA as it is covered by the Consumer Credit Act 1974 and not the DPA 1998.

 

 

The CRA's are there to help lenders make responsible lending decisions and if they had taken notice of the reports we would not have had a sub prime mortgage crisis.

 

 

 

Pedross

 

The CRAs have been around for quite a while. If the reporting has been accurate and up to date and Lenders taking account of that reporting.. Why are there so many problems now.

 

A lot of CAGers have been saying they have been overstretched and struggling for a lot longer than the last 2 years. Yet have still been either given more credit by the same lender or have obtained more from a different Bank.

 

It seems to me that, far from responsible lending, Creditors have ignored the reporting and lending anyway.

[sequenci]

Information Commissioners Office will not force a creditor/bank to give a CCA as it is covered by the Consumer Credit Act 1974 and not the DPA 1998.

 

 

Couldn't it be covered by both?

[citizenB]

Couldn't it be covered by both?

 

Not according to the conversation I had with the ICO, sequenci.

 

They say.....

 

If the information you are requesting is covered by the Consumer Credit Act 1974 then you should request that information directly under that Act:(

[AA99]

Yes, me too. The ICO were a very quick, easy, online complaint to make. They confirmed they had no powers of the CCA law, but they forced MBNA to produce SAR's after 10 months:confused:

[angry cat]

The ICO's duty lays with The Data Protection Act 1998. However, I note that some officers do not turn a deaf ear to matters involving:

Unresolved Disputes...

 

Going back to basics, the following was how the "Act" was drafted, in respect of Section 142:

 

"142 Power to declare rights of parties

 

 

 

(1) Where under any provision of this Act a thing can be done by a creditor or owner on an enforcement order only, and either—

 

 

 

(a) the court dismisses (except on technical grounds only) an application for an enforcement order, or

 

 

 

 

 

(b) where no such application has been made or such an application has been dismissed on technical grounds only, an interested party applies to the court for a declaration under this subsection,

 

 

 

 

 

the court may if it thinks just make a declaration that the creditor or owner is not entitled to do that thing, and thereafter no application for an enforcement order in respect of it shall be entertained.

 

 

 

(2) Where—

 

 

 

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

 

 

 

 

 

(b) a regulated agreement is terminated under section 91, and an interested party applies to the court for a declaration under this subsection, the court may make a declaration to that effect.

 

AC

[AA99]

Mmm...going to have to open a new Folder to keep some of these in AC:-o

 

[AA99]

Post #8, made 5 months ago:

 

banker_rhymes_with

Gold Account Holder

 

 

eBay user? Find misspellings and zero-bid items

Cagger since : Feb 2008

I am in: Debt

Posts: 3,443

 

 

Unenforceability Cases on hold until further notice

If genuine, this smells rather like the Judiciary swinging in behind the banks. This is probably the first step towards fudging another big issue to give the banks a reprieve from another one of their messes.

 

No doubt the Test Cases will be selected very carefully, to give them the results they want. In the mean time, they'll be busy working out how to water down/fiddle the next edition of the Consumer Credit Act to castrate it still further.

 

What ever happens, I somehow doubt this will be good for the Consumer.

 

Cheers,

BRW

Last edited by citizenB; 7th May 2009 at 10:25. Reason: amended title on merged posts

[diddydicky]

Only the court has powers to "enforce payment". In the absence of which it can grant charge orders, impose attachment on earnings, and authorise bailiffs etc.

 

the granting of a charging order, attachment of earnings and authorising bailiffs is an enforcement of the judgement of the court- not the agreement

[diddydicky]

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.

 

correct me if i am wrong, but under SAR the creditor is obliged only to give you details of the information that he holds about you

 

as far as i am aware he is not obliged to submit any original documents and can simply write down on a piece of clean paper what that information is

[enoughisenough]

Hi all

 

Apologies in advance for not having read through the full postings made tonight. So if I say anything already dealt with I apologize profusely. For those NOT in the know I will attempt a simplified explanation.

 

The reason for the decision – ratio decidendi

 

The ratio decidendi of a case is not the actual decision but rather the legal problem raised by the facts of the case and following on from this the reason for the decision. It ( the ratio decidendi) therefore arises from the facts of the case and critically applicable law. The ratio may also be established by a preceding similar case, with some provisos. (these include the precise degree of similarity of the previous case with the current case and whether the ratio has been applied correctly or, more accurately, in accordance with the law.)

 

Obiter

 

In a case judgment, any statement of law that is not an essential part of the ratio decidendi is, strictly speaking, superfluous. Any such statement is referred to as obiter dictum. This is Latin for ‘a word said while travelling’ or ‘along the way’ (obiter dicta in the plural). Although obiter dicta statements do not form part of the binding precedent, they are persuasive authority and can be taken into consideration in later cases, if the judge in the later case considers it appropriate to do so.

 

It has been argued that if you agree with the judgment you say it is part of the ratio; if you don't you say it is obiter dictum.

 

Why does any of this matter?

 

1. The ratio is binding on inferior courts, whilst the obiter is not.

2. There is serious difficulty in distinguishing between the two (This is where wordsmiths earn their money)

3. The obiter may be persuasive nonetheless

4. Inferior courts tend not to concerned with such distinctions anyway, The oppo can wave a bit of paper on the day quoting the McGuff case and the judge will melt in their favour.

 

Drawing conclusions from this and the extensive and excellent contributions made

 

1. It may turn out to be yet another Berwick or Rankine. (My estimation is it will. They could have done so much better with a real test case that established principles that everyone could see...but ah, no...)

2. It may have done us a favour as it brings us to the boards and demolishes complacency.

3. Flaux has, as far as I can see, rewritten a section of an Act of Parliament per incurium (by error of law) and decisions made as such are not binding on inferior courts

4. As such (in my understanding) it may still be argued (though not necessarily won) that because the decision has misapplied the relevant sections of the CCA 1974 no decision can be held as binding on the inferior court.

5. Further, the presence of a contractual agreement was not in question in this case therefore it is not relevant to cases in the county courts where such is an issue. ( I think I have that right). Still doesn't mean you would win though. The DJ lottery test has to be passed first.

 

Just my understanding. Please correct me with anything you may have which reveals my ignorance of some relevant or other aspect of my line of reasoning which has gone awry!

 

 

Finally there is Wambough’s Test. (Which I immediately confess to not understanding...here is is anyway!!!)

 

1. frame the legal principle that you have identified from a judgment.

 

2. invert a word or phrase which reverses the meaning of the principle.

 

3. ask yourself, if the court had the inverse principle in mind when reaching its decision, would it have reached the same conclusion?

 

4. If the answer to this question is yes, then your original proposition cannot be the ratio.

 

Keep the faith. EiE.

Edited October 9, 2009 by enoughisenough

[the_shadow]

Couldn't it be covered by both?

 

Dont forget the Data protection Act is just that.... its concerned with data not actual forms so even if they were to say to a lender you must give the information!

 

All the lender would have to do is to copy/transpose the information onto a blank sheet of paper and give it to the asker.

 

Citicard have done just so for my app form.

 

S.

[haggis1984]

correct me if i am wrong, but under SAR the creditor is obliged only to give you details of the information that he holds about you

 

as far as i am aware he is not obliged to submit any original documents and can simply write down on a piece of clean paper what that information is

 

Would this mean that following a SAR they would have to state whether or not a signed credit agreement actually existed, rather than actually provide the agreement? This could still be very useful to some caggers.

Edited October 10, 2009 by haggis1984

[diddydicky]

Would this mean that following a SAR they would have to state whether or not a signed credit agreement actually existed, rather than actually provide the agreement? This could still be very useful to some caggers.

 

as i understand it 99% of the information on the credit agreement is their (intellectual) property

 

the only information about YOU would be your details Name address phone numbers work details etc so this would be the information imparted to you that they have recorded on this agreement

 

further you KNOW that an agreement (or application form of some sort) exists (or should do) what you are seeking is whether it is enforceable.

 

I am not sure whether they would be forced by the SAR to make any admissions as to the legality of any agreement ( grey area i think)

Edited October 10, 2009 by diddydicky

[Mistermind]

 

the granting of a charging order, attachment of earnings and authorising bailiffs is an enforcement of the judgement of the court- not the agreement

the granting of a charging order, attachment of earnings and authorising bailiffs is an enforcement of the judgement of the court-

 

in accordance with the legal agreement,

not in defiance of the legal agreement.

Edited October 10, 2009 by Mistermind

[Ruprecht]

After reading all the Data Protection law a few weeks ago I concluded that you are entitled to information held on you in a structured filing system.

 

So if it was held on paper or microfiche and they filed it in order the accounts were open, account number order, by name order or even all agreements together, then you should be supplied it.

 

If they filed all stuff together at random you are not. (I'm sure the banks would do that!)

 

You can waste your time trying to get it the DPA 1998 way up to a year or more!

 

Complaining to the ICO is a waste of time, they will issue a non-binding response that the court will ignore anyway, maybe a year later!

 

DPA court action is more expensive than the CPR 31.16 route too.

 

You should however do both, the s77/78 request & DPA1998 request, it's only £11, to see if anything shows up and to prove to the judge you have tried every way the law lets you to get it before going for it via CPR 31.16.

 

It adds weight to the fact they may have something to hide.

 

This is what the claims management solicitors do and it should increase your chances of being awarded costs against them or at least no costs against yourself, for the CPR 31.16 application!

[diddydicky]

i agree to an extent, personally i feel that a SAR BEFORE they have terminated the agreement is a waste of 10 quid.

 

Some of the most useful and/or damning information you can recover is the information surrounding the time the account was DN's TN'd defaulted, assigned etc

 

all of which will be lost to you if you apply too early in the process

 

a case of "premature evaluation" if you like!!

[sequenci]

i agree to an extent, personally i feel that a SAR BEFORE they have terminated the agreement is a waste of 10 quid.

 

Some of the most useful and/or damning information you can recover is the information surrounding the time the account was DN's TN'd defaulted, assigned etc

 

all of which will be lost to you if you apply too early in the process

 

a case of "premature evaluation" if you like!!

 

Excellent advice.

[enoughisenough]

Thought the following from Wilson might be of interest:

 

49. I consider, however, that there is no relevant restitutionary remedy generally available to a lender in the circumstances now under consideration. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable. True, the Consumer Credit Act does not expressly negative any other remedy available to the lender, nor does it render an improperly executed agreement unlawful. But when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

 

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

[shakespeare62]

3. Flaux has, as far as I can see, rewritten a section of an Act of Parliament per incurium (by error of law) and decisions made as such are not binding on inferior courts

4. As such (in my understanding) it may still be argued (though not necessarily won) that because the decision has misapplied the relevant sections of the CCA 1974 no decision can be held as binding on the inferior court.

 

Any chance on exanding on points 3 & 4 please ? They sound attractive for a defence.

[angry cat]

Sorry to go off topic Guys, but does anyone know the total number of test cases that were put forward?

 

I know that there are 5 more to be heard on or around the 30th November.

 

However, wasn't the original number approx. 20?

some in Manchester, the rest in London.

 

Can anyone clarify?

 

Thanks

 

AC