Unenforceability Cases on hold until further notice

[Undercover-Elsa]

Since the claimant apparently accepted to the enforcement points, therefore presumably can't appeal, realistically what recourse is there for getting this ill conceived definition overturned?

[angry cat]

: "lenders can now be confident that reporting a customer's default to a CRA is a valid practice. Customers who bring claims and stop paying will blight their credit references. Customers who opt to use CCA claims as a way of eliminating debt may be better advised to utilise the services of an insolvency practitioner and propose an Individual Voluntary Arrangement."

 

Astonishing!

[car2403]

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?

 

Doubt it as that would be unjust enrichment. If you aren't being made to repay the debt, you can't recover charges applied to that debt, IMHO.

 

Since the claimant apparently accepted to the enforcement points, therefore presumably can't appeal, realistically what recourse is there for getting this ill conceived definition overturned?

 

Can't see why we'd want to do anything with this, as the issues were so narrow the resulting Judgment is just as narrow and this claim has easily distinguishable facts.

 

If anyone on CAG takes a company to Court for Default removal following a failed CCA request where the agreement turns up at a later date, they would be well advised to discontinue and negotiate on the issue of costs on the basis that the claim wouldn't have been brought had the agreement been provided within the prescribed period for the request.

 

Anyone who challenges a CRA Default when there's an enforceable agreement really needs to reconsider their position, IMHO.

[Undercover-Elsa]

So DCA's/Banks flouting the Debt Collecting Guidelines in other circumstances, believing the can because of this judgement will find that it's a different kettle of fish, presumably. Plus they're forgetting they're still dependant upon abiding by OFT guidelines in order to keep their licences. Maybe this could in fact be a good thing in terms of rope and hanging themselves?

[angry cat]

"Customers who bring claims and stop paying will blight their credit references."

 

RETALIATORY ACTION!

 

"Customers who opt to use CCA claims as a way of eliminating debt may be better advised to utilise the services of an insolvency practitioner and propose an Individual Voluntary Arrangement"

 

WHAT?

 

So who is going to pick up the tab for the Bankruptcy proceedings?

 

Personally speaking, I have outstanding unlawful penalty charges and mis-sold PPI owed.

 

They want to process my data but the data is incorrect.

 

And, how is all of this going to work alongside the DPA/OFT guidelines on Debt Collection?

 

I believe, that there are new OFT guidelines for traders due to be announced shortly.

 

AC

[SkemDosser]

Having read the original Court transcript (McGuffick v The Royal Bank of Scotland Plc [2009] EWHC 2386 (Comm) (06 October 2009)) and the above news report my conclusion is that the Journalist that wrote the news report didn’t read the Court Transcript or the facts of the case where not within his/her scope for interpretation.

 

Good God a journo not researching their report with even a cursory effort before sitting at the WP? what is the world coming to LOL more tosh from a Murdoch rag.

[noomill060]

"Doubt it as that would be unjust enrichment. If you aren't being made to repay the debt, you can't recover charges applied to that debt, IMHO."

 

Why would seeking reimbursement for money paid by mistake where the creditor has no evidence I agreed to pay interest be unjust enrichment?

 

Interest paid over the life of the agreement more than covers the alleged outstanding amount. The creditor admits no CCA so, as per Wilson, they lent money in circumstances wherby there was never an obligation to repay in any case.

 

I have filed a claim against a DCA in just these circumstances.

[SkemDosser]

Credit Management & Debt Collection Business Industry News

 

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

Well after spending a few days looking at the info and excellent analysis here, the above article is icing on the cake to me and shows it's the banks that are scrambling for reasons to be feel cheerful and the test case was a phyrric victory for them.

 

The vast majority of us are here because we got into difficulties and I would warrant very few of us are under the illusion that we can get our debts 'written off.'

 

The fact remains that the vast majority of these credit debts are attached to legally defective contracts and as such can quite sensibly be challenged and rejected if proven so. It's what any good business- including of course the banks themselves in the same situation- would do without any impunity.

 

I still say as soon as you confirm your credit agreement is legally defective [or more often than not non-existent] stop paying, grit your teeth and do your six year porridge.

 

One default is as good as ten so get them running and degrading in time. Besides you're in good company, I dare say hundreds of thousands of people have defaults now, the banks are steadily devaluing their effect everytime they issue one these days and credit reference agencies will have to adjust their credit scorings to suit- even if it has to be through a government edict- because very soon a vast part of the population will not be able to obtain even basic credit on present criteria...and then were will the much needed consumer spending revival come from?

 

And besides who really needs loads of credit any more. I sense it's allure has diminished considerably and it's interesting getting feedback from teenagers and kids in their early twenties who seem surprisingly anti-credit cards.

 

Some people of course need squeaky clean credit records, but I'd warrant they are a very small group these days. So take the default hit, challenge the dodgy defaults if you feel the need, don't pay the fools any more and get on with life.

[car2403]

"Doubt it as that would be unjust enrichment. If you aren't being made to repay the debt, you can't recover charges applied to that debt, IMHO."

 

Why would seeking reimbursement for money paid by mistake where the creditor has no evidence I agreed to pay interest be unjust enrichment?

 

Interest paid over the life of the agreement more than covers the alleged outstanding amount. The creditor admits no CCA so, as per Wilson, they lent money in circumstances wherby there was never an obligation to repay in any case.

 

I have filed a claim against a DCA in just these circumstances.

 

Because the debt is unenforceable, you aren't going to pay it. As you aren't going to pay it, how can you reclaim an amount you haven't paid yet?

 

I know what you mean about recovering interest paid to date, but there's a different story and one I don't agree with, personally.

 

Maybe you need another thread, Noomy, as we're well off topic now

[shakespeare62]

Effects of Statutory Bar on enforcement under CCA 1974

 

This part of “Wilson” was not quoted in Flaux's judgment.

 

Lord Nichols of Birkenhead para 121:-

 

“...The statutory bar on its enforcement extended to FCT's right to recover the total sum payable on redemption, which included the principal as well as interest. That is what the statute provides.”

 

“....I do not think that it is open to us to say that Parliament did not contemplate that the effect of this provision, which was to disable the creditor from recovering the principal of the sum lent as well as the interest on it, might be to enrich the borrower. Once that position is reached, the position is clear. The court cannot override the statutory provision by substituting a common law remedy.”

Edited October 11, 2009 by shakespeare62

[car2403]

Effects of Statutory Bar on enforcement under CCA 1974

 

This part of “Wilson” was not quoted in Faux's judgment.

 

Lord Nichols of Birkenhead para 121:-

 

“...The statutory bar on its enforcement extended to FCT's right to recover the total sum payable on redemption, which included the principal as well as interest. That is what the statute provides.”

 

“....I do not think that it is open to us to say that Parliament did not contemplate that the effect of this provision, which was to disable the creditor from recovering the principal of the sum lent as well as the interest on it, might be to enrich the borrower. Once that position is reached, the position is clear. The court cannot override the statutory provision by substituting a common law remedy.”

 

It wasn't quoted as it's not relevant - Wilson had an unenforceable agreement, this one doesn't

[shakespeare62]

In the Wilson case, the car pawned was a "good", but Lord Nichols indicates that the statutory bar on enforcements prevents the principal loan amount and interest being recoverd.

 

It would seem that section 65 CAA 1974,. and Lord Nichols comments on unenforceability do not limit enforceability to hire agreements.

 

Comments folks ?

Edited October 11, 2009 by shakespeare62

[letitbeme]

See ***

1. I also consider that there is no basis for granting an injunction compelling the bank's compliance with section 77(1). The only sanction for non-compliance (now that the Regulations have repealed section 77(4)(b)) is that the agreement is not enforceable during the period of non-compliance. Although section 170(3) of the Act preserves the power of the court to grant an injunction, it does not seem to me appropriate to do so against the bank in the present case.
   

1. Given that the non-compliance now consists only in not having provided a signed statement of account (because quite properly the bank wanted to ensure that there was still a lis between the parties for the purposes of this test case), there would be no useful purpose in granting the injunction sought. The absence of the statement may be a technical non-compliance, but the claimant has suffered and is suffering no prejudice as a consequence, since he has been kept fully informed of the state of his account by annual statements and in correspondence.
   

1. In his reply submissions, Mr Moran realistically recognised that the court was not going to grant the injunction he sought. He said that he and those who instructed him were concerned that the court should make some reservation that there might well be circumstances in which the court might grant such an injunction. I agree with Mr Handyside that it would be quite wrong to make any such open-ended reservation and I decline to do so. ***The availability of injunctive relief depends upon the facts of each particular case and on the evidence presented to the court in the particular case. Whether in another case another court might grant an injunction would depend on the facts and the evidence before that court. ***
   

So injunctive relief would be granted for the following.

• None production of a compliant CCA.
  
• Production of none compliant CCA.
  
• None production of account statements.
  
• None production of a Default Notice.
  
• Production of none compliant Default Notice.
  
• Etc, Etc ….
  

[shakespeare62]

It wasn't quoted as it's not relevant - Wilson had an unenforceable agreement, this one doesn't

 

Fair comment, but is there a potential overlap on the meaning of enforcement, in the sense that DCA claimant's will probabably, quote FLAUX's definition that judgement is not enforcement - whatever we say ?

Edited October 11, 2009 by shakespeare62

[sunray001]

So what's the bottom line here. Are we all stuffed? The DCAs will pester us now non stop now. Do we have any defence?

( Actually I think the best defence will probably come from the DCAs themselves. They will dig a deep hole for themselves and then jump in. )

regards

Edited October 11, 2009 by sunray001

[car2403]

In the Wilson case, the car pawned was a "good", but Lord Nichols indicates that the statutory bar on enforcements prevents the principal loan amount and interest being recoverd.

 

It would seem that section 65 CAA 1974,. and Lord Nichols comments on unenforceability do not limit enforceability to hire agreements.

 

Comments folks ?

 

Definately. We've used it many times in those instances and it's never been challenged, plus there are many cross-reads from Wilson to many other cases which would be difficult to dispute, IMHO.

 

Fair comment, but is there a potential overlap on the meaning of enforcement, in the sense that DCA claimant's will probabably, quote FLAUX's definition that judgement is not enforcement - whatever we say ?

 

Look, don't get carried away with this. The DCA's will, yes, but that's where CAG exists to educate people; if this Judgment is used in any other case than where a Default is challenged during a period of non-compliance with a CCA request and where the original agreement turns up at a later date, those cases are easily distinguished from this one, meaning this Judgment is virtually irrelevant.

 

C'mon, guys, these DCA guys come up with enough questionable approaches - we don't need to offer them this on a plate like this. (I always swore NOT to work for a DCA, so I'm being very careful what I'm posting as I wouldn't want to help them, now, would I? )

[Tricky Dickie]

Well after spending a few days looking at the info and excellent analysis here, the above article is icing on the cake to me and shows it's the banks that are scrambling for reasons to be feel cheerful and the test case was a phyrric victory for them.

 

The vast majority of us are here because we got into difficulties and I would warrant very few of us are under the illusion that we can get our debts 'written off.'

 

The fact remains that the vast majority of these credit debts are attached to legally defective contracts and as such can quite sensibly be challenged and rejected if proven so. It's what any good business- including of course the banks themselves in the same situation- would do without any impunity.

 

I still say as soon as you confirm your credit agreement is legally defective [or more often than not non-existent] stop paying, grit your teeth and do your six year porridge.

 

One default is as good as ten so get them running and degrading in time. Besides you're in good company, I dare say hundreds of thousands of people have defaults now, the banks are steadily devaluing their effect everytime they issue one these days and credit reference agencies will have to adjust their credit scorings to suit- even if it has to be through a government edict- because very soon a vast part of the population will not be able to obtain even basic credit on present criteria...and then were will the much needed consumer spending revival come from?

 

And besides who really needs loads of credit any more. I sense it's allure has diminished considerably and it's interesting getting feedback from teenagers and kids in their early twenties who seem surprisingly anti-credit cards.

 

Some people of course need squeaky clean credit records, but I'd warrant they are a very small group these days. So take the default hit, challenge the dodgy defaults if you feel the need, don't pay the fools any more and get on with life.

 

I agree absolutely,this case was definately the banks clutching at straws to try and find some way to discourage people from challenging their agreements which means that they have already conceded that they are not going to defend successfully the majority of their agreements particularly where they were issued before April 2007 so lets not get too discouraged by this.

In the case conference in May at Chester County Court all the solicitors and barristers present agreed with Judge Halbert that the general principals of unenforceable agreements were well established and accepted by everyone.

When RBS asked for this case to be one of those heard in London Halbert seemed quite surprised but agreed when the borrowers solicitors had no objection.

There was general amusement on the part of the legal teams representing borrowers and CMC's that RBS should be trying to argue that reporting borrowers to CRA was not enforcement by another name but they also took as vindication that the lenders had already privately conceded the principles of unenforceability.

The legal teams representing the lenders had the air of people who did not have their heart or belief in what they were doing and there was a certain amount of mickey taking by the CMC legal teams in their direction.

One solicitor said RBS representatives had the air of a lawyer appointed to defend a rapist they knew was guilty- its a ****ty job but someones got to do it.

[Tricky Dickie]

I think people need to retain a sense of perpective about having DCA 's etc chase you for money.

Most people get scared because they don't understand how things work so when DCA's threaten to take your furniture etc people panic because they believe what they are told

Once you undrstand that they can do nothing of the sort without going through the whole legal process then you can easily deal with them.

I have several agreements I believe are unenforceable and I have paid nothing on them for more than 18 months despite receiving at least 6-8 phone calls a day and regular threatening letters at the start.

I leave my phone on voicemail mode most of the time but every now and again just for a bit of amusement I speak to them and ask questions which I know they will not be able to answer which is great fun or when they ask me to answer some security questions I say 'only after you answer my security questions,after all how do I know that you are who you say you are'.

I think of it as similar to keeping a tame Zombie in the garden shed like Shaun of the Dead.

They have mostly given up now and moved on to more productive activities with little old ladies and disabled people.

I guess I am luckier than some in that the lack of a credit rating is not of particular concern to me as I have decided that I can live happily without it but just the same knowledge about these things is power

[angry cat]

I think people need to retain a sense of perpective about having DCA 's etc chase you for money.

Most people get scared because they don't understand how things work so when DCA's threaten to take your furniture etc people panic because they believe what they are told

Once you undrstand that they can do nothing of the sort without going through the whole legal process then you can easily deal with them.

I have several agreements I believe are unenforceable and I have paid nothing on them for more than 18 months despite receiving at least 6-8 phone calls a day and regular threatening letters at the start.

I leave my phone on voicemail mode most of the time but every now and again just for a bit of amusement I speak to them and ask questions which I know they will not be able to answer which is great fun or when they ask me to answer some security questions I say 'only after you answer my security questions,after all how do I know that you are who you say you are'.

I think of it as similar to keeping a tame Zombie in the garden shed like Shaun of the Dead.

They have mostly given up now and moved on to more productive activities with little old ladies and disabled people.

I guess I am luckier than some in that the lack of a credit rating is not of particular concern to me as I have decided that I can live happily without it but just the same knowledge about these things is power

 

Totally Agree TD!

 

And, I love the following, says it ALL!:

:

One solicitor said RBS representatives had the air of a lawyer appointed to defend a rapist they knew was guilty- its a ****ty job but someones got to do it."

 

AC

[Ruprecht]

You could always tell them you are deaf. That usually stops them phoning.

 

Or have some fun like this :-

 

(i) Keep writing to them saying there is no circumstance whatsoever you will pay them a single penny ever, no matter what they say or write.

 

(ii) You object to any phone calls of any kind and will make a formal complaint about every phone call which they will have to deal with under the CCA2006 rules. (Ask them for a copy of their complaint procedure everytime)

 

(iii) You will chase them for a final response as per (ii) for every complaint made.

 

(iv) You will make a complaint to the FOS about (ii) & (iii) for every phone call.

 

(v) In every instance you will keep the operator on the phone for as long as possible wasting their time. ("I don't want to talk about debts, God told me not to this morning!... YES HE DID!")

 

(vi) Every letter threatening legal action for a known unenforceable agreement will be reported to the police and OFT as a menacing demand for money and fraud for attempting to gain funds by deception.

 

(vii) Any letter threatening agents calling will be met by an injunction against trespassing.

 

(viii) Tell anyone who phones the endings to the recent hollywood blockbusters. :-P (Yes I went through a stage of doing that!)

 

 

Eventually their time spent dealing with you with no prospects of getting any money and the fact their computer system is jammed full of comments will probably make them agree it's all over. Hasn't failed for me yet.

[enoughisenough]

Oh God I'm in awe of this thread and this site in particular. The professionals have truly taken over the asylum. The sham ams (that's them) are well and truly rattled. McGuff proved it. Absulutely desperate for anything.

[Baggio]

correct

 

but WE need some publicity too

 

we know the truth, but the wider public will be hoodwinked by silly childish incorrect articles as per the times online.

 

i recall the BBC reporting 100,000 cases being stayed back in May... we all knew this was rollox... but it tookl the MOJ/Judicary review up until August to post a notice stating this article and similar ones with regards to stays were incorrect.

 

its one big big [problem] and bank/government backed media spin job.. they are damned to rights under CCA 74 and will try every dirty trick in the book to deter aunt fanny struggling with her debts and considering suicide, to pay up instead of using the legal protection afforded to her under CCA 74 and the unfair relations as per CCA 06.

 

this is where i back decent CMCs who take these b asta rds on, and we should all back them or at least CAG should release a press release stating the real truth... something is needed

 

more and more folk are topping themselves.. when they do not need to... the banks CAN afford to take a hit on all these unenforceables.... poor aunt fanny or cousin jack cannot.

[shakespeare62]

if this Judgment is used in any other case than where a Default is challenged during a period of non-compliance with a CCA request and where the original agreement turns up at a later date, those cases are easily distinguished from this one, meaning this Judgment is virtually irrelevant.

 

I guess this is an important point.

[shakespeare62]

correct

its one big big [problem] and bank/government backed media spin job..

 

There is very big money involved. Who knows what deals are made in darkened corridors of power. The government owns the banks - some of them at least.

 

It has the power and the tools to spread disinformation through various outlets to suit its purposes.

[gezwee]

What benefit does this ruling have for the banks?

 

Unenforceability position remains unchanged.

 

Reporting to CRA's continues

 

For S.65 and S.127 the creditor still needs to seek enforceability order under section 127(1) ....if they have the balls that is.

 

Can't see what has changed?