Unenforceability Cases on hold until further notice

[angry cat]

 

AC where did you get this article please?

 

Right at the bottom of this PT under comments:

High Court decision on debt loophole dashes write-off hopes for thousands - Times Online

 

AC

[Demonbarb]

Ok so here it is in full:

 

Let's isolate the spin from the facts, and then maybe invite the esteemed Times for correction (small print bottom of page 76 below the Court circular no doubt) i

I agrees with some of your comments, but I find some of your comments about CMCs quite offensive. I am involved in a CMC and have commented on here before that not all CMCs are bad. I do not exploit anyone I help people in need and we do not charge any fees to enable them to get the same results that people on here have done for themselves. What is so bad in that? I use this website as I find it fascinating and inspiring to read what others have done and continue to do.

[enoughisenough]

I agrees with some of your comments, but I find some of your comments about CMCs quite offensive. I am involved in a CMC and have commented on here before that not all CMCs are bad.

 

Hello Demonbarb and welcome to the forum.

 

I am sorry you find my comments offensive.

 

For clarification I would point out that I am referring to the ambulance chasers who have been censured and fined for their outlandish claims by the FSA/OFT rather than the genuine CMCs out there doing good work on behalf of people who simply do not have the time or the savvy to manage their own claims.

 

Your company must be one of those who takes a slice of the settlement figure since you do not charge any fees. You surely do not work on these cases for free???

 

If you do please post your number.

[enoughisenough]

...if not then at least the name of your reputable firm?

[gezwee]

 

AC where did you get this article please?

 

I take it this was not MG commenting?

 

As for the reporting of 'the' historical judgement , wish they'd asked if they didnt understand!

[enoughisenough]

Just look at who owns the Times and the kind of people who getto write these stories. Anybody care to hazard a guess as to why newspaper articles are called stories ?

[shakespeare62]

However goods is given wide meaning in law to include money.

 

Is there anything an LIP can use in Court to back up the above assertion ? Is there a definition or a case ref ? It would be really useful to have. Or is it just common knowledge ? ...

Edited October 10, 2009 by shakespeare62

[shakespeare62]

BTW Excellent post #1002 by EnoughIsEnough....thank you

[gezwee]

Is there anything an LIP can use in Court to back up the above assertion ? Is there a definition or a case ref ? It would be really useful to have. Or is it just common knowledge ? ...

 

Shakespeare makes a good point (I think), one of us at some time is going to come up against a DJ not particularly savvy where it counts and will need a quick response to a direct question if he/she has misinterpreted the recent ruling.

 

Anyone have a suitable para of case law to direct toward?

 

Gez

[letitbeme]

I think most of the comments where made by RBS shareholders....

LIBM

 

 

Marc Gander wrote:

This article completely misstates the effect of the judgment.

The effect of the judgment is that the agreement is unenforceable so that the money is not recoverable at law. However the legal unenforceablity does not prejudice the rights of the lender to continue non-judical methods of attempting the recover the money, of entering defaults onto the credit register etc. Furthermore, the customer would not normally be entitled to complain of harassment in respect of normal debt collection practices or make complaints under the Consumer (Protection from Unfair Trading) Regs 2008 etc.

In other words, the lender can still pile on the pressure but can't take any formal action to get their money back.

To say that customers will now be obliged to repay is entirely wrong."

 

AC

 

Hi AC, I was referring to:

 

Yes, they do have to pay. The gist of the argument would appear to be that since they took the money, the agreement IS enforceable; if they want it not to be they will have to return what they borrowed.

 

A reasonable decision for once. These were just immoral people looking for permission to steal.

.

Seems to be the right decision, particularly if there was nothing at all underhand, or unscrupulous behaviour by the lender at the time the original contract was made. The borrower would surely have understood from the outset what were the obligations, including payment of interest?

To later start grubbing around for some technicality to avoid legitimate and freely entered into obligations is entirely immoral.

[shakespeare62]

Enforcement is given a rather limited defintion, of land and goods. However goods is given wide meaning in law to include money.

 

Well I guess arguably money is "goods" - for example debts can be sold as property under s136 of the Law of Property Act 1925 - which applies to Notices of Assignment

 

Comments anyone ?

Edited October 11, 2009 by shakespeare62

[spikenemesis]

i wonder what francis benyon makes of this?

hes the guy who wrote the 1974 consumer credit act incidentally he also writes in the times on occasion

heres his website

Francis Bennion - Home Page

i think hes contactable through his website too, but dont quote me on that

just a thought

[enoughisenough]

He is contactable

 

Though at 86 it would be better if we could all put a form of words together so that one person and one person alone contacts him.

 

On the matter of money as goods I'm onto this and will post soon.

[enoughisenough]

Well unfortunately I've found the precise opposite but there may be some case law in which the meaning of goods has been settled by a superior court. The CCA uses the term and my thinking is that Bennion must have meant money to be included in goods.

 

You can be damn sure that if the banks wanted goods to mean money it wouldn't be long before Flaux ruled that it does.

 

Here's the depressing authority:

 

HC Black Black's Lav Dictionary 6th ed West Publishing Co, Minnesota 1990 Also see BA Garnerl Díctionary of Modern Legal Usage Oxford University Press, New York 1987 p258: Goods has a variety of senses

 

- "in the legal sense goods refers to chattels or personalty". HAJ Ford GrW Hinde MS Hinde Australian Business Dictionary Butterworth's, Sydney 1985 p87: Goods is defined as moveable propely. The Sale of Goods Acts defure goods as all chattels personal other than money or things in action

 

Further:

 

“goods” [F2includes all personal chattels, other than things in action and money, and as regards Scotland all corporeal moveables; and in particular “goods” includes] emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before the transfer [F2bailment or hire]concerned or under the contract concerned F3. . .;

 

Looks like I might have to revisit my earlier expressed opinion that goods excludes money. Why would Bennion use the term in a clause on unenforcability?

 

Section 189 of the CCA 1974 States that

 

“goods” has the meaning given by section 61(1) of the Sale of Goods Act 1979 ;

 

The definition is that given above. Sorry to build people's hopes up and then dash them. Goods does not include money. At least we know that now rather then when it really matters.

[Tricky Dickie]

Hello Demonbarb and welcome to the forum.

 

I am sorry you find my comments offensive.

 

For clarification I would point out that I am referring to the ambulance chasers who have been censured and fined for their outlandish claims by the FSA/OFT rather than the genuine CMCs out there doing good work on behalf of people who simply do not have the time or the savvy to manage their own claims.

 

Your company must be one of those who takes a slice of the settlement figure since you do not charge any fees. You surely do not work on these cases for free???

 

If you do please post your number.

 

 

It is not correct to state that a company who does not charge any up front fees must necessarily take a slice of the settlement figure.

CMC's typically work with solicitors who work on a conditional fee agreement basis (no win no fee) and when a solicitor wins a case under such an arrangement he is allowed to claim a success fee of up to 100% of his costs from the lender.

The CMC usually has an arrangement with the solicitor that a proportion of this success fee is then paid by the solicitor to the CMC and this is where the CMC generates an income.

In many cases the solicitor also has to pay a fee to the CMC for the privelidge of taking on the case.

IMHO the CMC's charging the client up to 30% of whatever they manage to clear as a debt are completely immoral as they are still leaving the borrower with a substantial debt and there is no need to do that as if they are successful like they claim to be they will be raking in the success fees.

[enoughisenough]

The Times article mentions Ultimate Law and its my guess the Times journo just wrote what they told him. It was Ultimate Law who started all the 'false stay' reports back in May after Judge Halbert called the case management conference in Chester.They really do have a knack for getting everything wrong

 

Maybe Ultimate Law should read Ultimate Flaux (Flaw, Faux...)

[enoughisenough]

CMC's typically work with solicitors who work on a conditional fee agreement basis (no win no fee) and when a solicitor wins a case under such an arrangement he is allowed to claim a success fee of up to 100% of his costs from the lender. The CMC usually has an arrangement with the solicitor that a proportion of this success fee is then paid by the solicitor to the CMC and this is where the CMC generates an income.

 

Fair point well made. But I do have an animus against those that are taking a slice out of any settlement.

[angry cat]

Hi AC, I was referring to:

 

 

I always disregard any and all narrow minded, brain dead commemts, letitbeme!

 

Having read the McGuffick case judgement five times now, I was surprised that the Times journalist misreported the case.

Clearly, he/she had not read it or, did not understand it; CCA matters as we know are complex...

 

AC

[letitbeme]

He is contactable

 

Though at 86 it would be better if we could all put a form of words together so that one person and one person alone contacts him.

 

 

Yes! I totally agree, the only person that could interpret Flaux's ruling should be Francis Bennion the master has written extensively on the following:

 

Section 1. To ‘construe’ or ‘interpret’?

Section 2. Interpreter’s duty to arrive at legal meaning

Section 3. Real doubt as to legal meaning

Section 8. Duty to obey legislation

Section 9. Ignorantia juris neminem excusat

Section 10. Mandatory and directory requirements

LIBM

[noomill060]

I have been working under the impresion that unlawful penalties are recoverable even if there is an apparantly outstanding (though unenforceable and written off) debt on the account.

 

Could someone please enlighten me if this is indeed the case?

[ncf355]

 

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

 

 

What the hell?

 

What exactly DO they consider enforcement to be then?

 

Are we all completely screwed due to this ruling?

 

(though the point they argued on seems VERY, VERY, weak)

 

This needs some serious discussion!

[ncf355]

Based on the above piece about CRA's, the DPA might as well not exist

[angry cat]

Credit Management & Debt Collection Business Industry News

 

The above view appears to show the view held by the financial industry!

[Tricky Dickie]

Fair point well made. But I do have an animus against those that are taking a slice out of any settlement.

 

Agree 100% about that

[letitbeme]

Credit Management & Debt Collection Business Industry News

 

The above view appears to show the view held by the financial industry!

 

 

2. the following activities will not be regarded as "enforcement" for the purposes of the CCA:

 

· reporting the status of any account to a credit reference agency (CRA);

· demanding payment from the debtor;

· issuing a default notice to the debtor;

· threatening legal action;

· instructing a third party to demand payment or otherwise seek to procure payment;

· bringing proceedings against the debtor.

 

 

· bringing proceedings against the debtor.

Not enforcement, OK what is enforcement?

 

Legal Dictionary

 

Main Entry: en·force·ment

Function: noun

: the act or process of enforcing

 

Legal Dictionary

 

Main Entry: pro·ceed·ing

Function: noun

1 : a particular step or series of steps in the enforcement, adjudication, or administration of rights, remedies, laws, or regulations: as a : an action, hearing, trial, or application before the court

 

LIBM