Unenforceability Cases on hold until further notice

[the_shadow]

Hello

 

All that on a Friday afternoon

 

Mickie xx

 

[sigh]

 

The agreement in the [McDuff] case as I will now continue to refer to...was only unenforceable due to the lack of a financial statement being sent with the agreement. Further the Agreement it should be NOTED was agreed to be ENFORCEABLE by both parties at the hearing.

 

Hence if you have an unenforceable agreement this case has little to no bearing and should be argued as such.

 

S.

[AA99]

Well done that man:D Now get off into a pub ful of lawyers and bankers and find out what happened to Welcome/Cattles today:D

 

Back to your post, how long will it be till the opinions of the CRA's are taken to heart by anyone? Useless bunch of people anyway who aren't even regulated! My report's pretty trashed already with petty things like catalogue shopping and incorrect reporting by them about linked addresses and misspelling of my name, etc, etc,

[Baggio]

Hello

 

 

SPPL v Walker was heard on the 14th October @ the Court of Appeal

 

Judgement has been reserved to be given at a later date.

 

No further information will be decided this month and I would expect a Final Decision at some point in November maybe later.

 

McGuiffick ruling effectively concerned whether or not the Banks failure to provide a CCA pursuant to S77/78 prevent them from pursuing for the debt and reporting to credit reference agencies.

 

The answer as we all know was yes they can which effectively means in my view that they can still pursue you for that debt even if the court decides that your agreement is irredeemably unenforceable.

 

The reason for me saying that is on the basis that whilst the CCA 1974 and the Regulations thereunder are there to effectively protect the consumer and if the lender has not complied with their obligations then they don't have a right to enforce which is quite correct.

 

However in the background the debt is still there and the contractual obligation remains. It will in my view never be declared void. It will alsways remain owing and due.

 

The ramifications of this are that if the court declared your agreement irredeemably unenforceable potentially the lender still could pursue you for the debt, make adverse refernces to credit reference agencies and issue proceedings in respect of that debt. The McGuiffick case confirmed that issuing of proceedings was not classed as enforcement

 

I understand the reasoning as to why in that if that had been classed as enforcement then the judge would have been restricting a persons right to justice.

 

However it does beg the question as to what is enforcement?

 

How far is the lender permitted to go before it constitutes enforcement of the debt

 

Will the lender be able to get a money judgement against the consumer but not be able to enforce to recover that money

 

In respect of credit referencing the Mcguiffick ruling leaves it wide open for Banks to continue issueing adverse reference even after an agreement has been declared unenforceable.

 

In future a court may give further guidance as to what references the lender is permitted to make. Whether after an agreement is declared unenforceable the court may specify what wording is to be used in those references

 

Currently in any event even when you do have an unenforceable agreement the contractual obligation remains and the debt remains owing and due.

 

Whilst the court may have determined an agreement unenforceable the next step will be that the consumer will stop paying and the lender will then make a reference to the CRA's.

 

There is no doubt in my mind that if the court finds in the consumers favour the consumers credit rating will be affected potentially resulting in refusal for credit in cases where previously the consumer had a 100% clear credit rating.

 

Whilst I think McGuiffick is unlikely to be appealed I am positive that there will be further guidance from the courts as to how the lender is to treat the consumer following an agreement being declared unenforceable especially with regard to adverse references and the cra's

 

All that on a Friday afternoon

 

Mickie xx

 

Which debt collector / lender do you spin for?

 

Complete popycock

 

how can they issue proceedings against something made unenforceable?

 

to sue a borrower for repayment, by law, the lender needs an enforceable agreement

 

FFS this is very basic stuff, only 2 type of folk get this confused

 

1. the uneducated

 

2. the manipulators

 

which one are you?

[kel123]

And why push s78 in again IT IS NOT RELEVANT TO THE McTHINGY CASE, pardon the pun but didn't Flaux make it clear enough or should I say baldrick!

 

I agree with Baggio, 3rd on the list as probables

[kel123]

Mind you I think we do a disservice by knocking HHJ Flaux. I think he was in a cornor and knew it, which is why he narrowed it down and said that all case should be considered on there own merit, thus trying to defect the presedance

[angry cat]

by mickiestar:

 

The ramifications of this are that if the court declared your agreement irredeemably unenforceable potentially the lender still could pursue you for the debt, make adverse refernces to credit reference agencies and issue proceedings in respect of that debt."

 

RUBBISH!!

 

AC

[Desperate Daniella]

For some reason I've just thought of DWheeler on an AIC thread.

[gezwee]

Hello

 

 

SPPL v Walker was heard on the 14th October @ the Court of Appeal

 

Judgement has been reserved to be given at a later date.

 

No further information will be decided this month and I would expect a Final Decision at some point in November maybe later.

 

McGuiffick ruling effectively concerned whether or not the Banks failure to provide a CCA pursuant to S77/78 prevent them from pursuing for the debt and reporting to credit reference agencies.

 

The answer as we all know was yes they can which effectively means in my view that they can still pursue you for that debt even if the court decides that your agreement is irredeemably unenforceable.

 

The reason for me saying that is on the basis that whilst the CCA 1974 and the Regulations thereunder are there to effectively protect the consumer and if the lender has not complied with their obligations then they don't have a right to enforce which is quite correct.

 

However in the background the debt is still there and the contractual obligation remains. It will in my view never be declared void. It will alsways remain owing and due.

 

The ramifications of this are that if the court declared your agreement irredeemably unenforceable potentially the lender still could pursue you for the debt, make adverse refernces to credit reference agencies and issue proceedings in respect of that debt. The McGuiffick case confirmed that issuing of proceedings was not classed as enforcement

 

I understand the reasoning as to why in that if that had been classed as enforcement then the judge would have been restricting a persons right to justice.

 

However it does beg the question as to what is enforcement?

 

How far is the lender permitted to go before it constitutes enforcement of the debt

 

Will the lender be able to get a money judgement against the consumer but not be able to enforce to recover that money

 

In respect of credit referencing the Mcguiffick ruling leaves it wide open for Banks to continue issueing adverse reference even after an agreement has been declared unenforceable.

 

In future a court may give further guidance as to what references the lender is permitted to make. Whether after an agreement is declared unenforceable the court may specify what wording is to be used in those references

 

Currently in any event even when you do have an unenforceable agreement the contractual obligation remains and the debt remains owing and due.

 

Whilst the court may have determined an agreement unenforceable the next step will be that the consumer will stop paying and the lender will then make a reference to the CRA's.

 

There is no doubt in my mind that if the court finds in the consumers favour the consumers credit rating will be affected potentially resulting in refusal for credit in cases where previously the consumer had a 100% clear credit rating.

 

Whilst I think McGuiffick is unlikely to be appealed I am positive that there will be further guidance from the courts as to how the lender is to treat the consumer following an agreement being declared unenforceable especially with regard to adverse references and the cra's

 

All that on a Friday afternoon

 

Mickie xx

 

 

This would probably have sounded a whole lot better coming out of your mouth rather than (edit)

 

I'm gonna have another Cagbot thingy for that one aint I

Edited November 13, 2009 by freakyleaky
Bypassing the swear filter. PLEASE READ THE SITE RULES

[Mickiestar]

Which debt collector / lender do you spin for?

 

Complete popycock

 

how can they issue proceedings against something made unenforceable?

 

to sue a borrower for repayment, by law, the lender needs an enforceable agreement

 

FFS this is very basic stuff, only 2 type of folk get this confused

 

1. the uneducated

 

2. the manipulators

 

which one are you?

 

 

Neither the uneducated nor the manipulator

 

I am the Solicitor... one of many who is currently acting for the Consumer in relation to these agreements and one of many who is currently considering the implications of McGuiffick in light of a number of cases which I have running in County Courts up and down the Country

 

An agreement is declared irredeemably unenforceable

 

The debt remains outstanding and the debt is not made void and is not written off

 

When you enter into an agreement you entered into a contractual relationship where the consumer had obligations to repay and the lender had obligations to report for non payment.

 

If your loan agreement is declared unenforceable the fact is that the debt relating to that agreement will remain on your credit file and the lender as part of their contractual obligation is likely to make an adverse reference which will be on your credit file

 

It may not say default on payment but more than likely the courts eventually will make a decision as to the precise wording of the reference following a determination of unenforceability

 

That will then remain for all other lenders to be seen potentially affecting a persons ability to get further credit

 

Further as the contractual obligation still remains under Mcguiffick there is nothing stopping the lender from continuing to pursue the debt and or issue proceedings (although in reality it is unlikely) but hypothetically it could happen

[Desperate Daniella]

Mickiestar,

 

What exactly were you hoping to find out here, from caggers?

 

DD

[Kraken1]

Hence if you have an unenforceable agreement this case has little to no bearing and should be argued as such.

 

I'm not sure, that in practice, this will be the case. I don't think that nuances will be accepted and it will be considered quite black and white - enforceability means x, y isn't, therefore irrespective of the validity of the agreement, the dca/oc can do y.

 

The ramifications of this are that if the court declared your agreement irredeemably unenforceable potentially the lender still could pursue you for the debt, make adverse refernces to credit reference agencies and issue proceedings in respect of that debt.

 

I agree with this interpretation of the case. Just my opinion on reading the ratio and obiter.

 

how can they issue proceedings against something made unenforceable?

 

Easy. Issue an N1. Happens every day.

 

to sue a borrower for repayment, by law, the lender needs an enforceable agreement

 

Not true. theoretically, to obtain judgment you need an enforceable agreement. Experience has shown that this is not always the case. Also, the absence of an agreement and failure to comply with s77 is entirely different to the actually enforceability of an agreement that is provided.

 

FFS this is very basic stuff, only 2 type of folk get this confused

 

1. the uneducated

 

2. the manipulators

 

I disagree. Consumer law, and credit law specifically is not simple. I would suggest that it is more likely that the educated get confused with it as opposed to the uneducated. The educated appreciate the issues and the problems, the uneducated fail to see the degrees. Statistically I understand that I am substantially better educated than the vast majority of the population. I am a professional with multiple degrees... and I consider much of the law in this area confusing and contradictory.

Edited October 23, 2009 by Kraken1

[enoughisenough]

Reconsidering post in light of further contributions. Will post back soon.

Edited October 23, 2009 by enoughisenough

[Kraken1]

I can only take issue with a couple of points, and I think that some of this must be considered to be debatable:

 

The McGuiffick case confirmed that issuing of proceedings was not classed as enforcement

 

I'm not sure the judgment actually did this, but I may have missed it. Would be grateful if you could direct me to the para.

 

However it does beg the question as to what is enforcement?

 

I thought the judgment was quite clear on this.

 

How far is the lender permitted to go before it constitutes enforcement of the debt

 

See above - anything that is not considered to be enforcement and is not prohibited by the relevant codes and guidance.

 

Will the lender be able to get a money judgement against the consumer but not be able to enforce to recover that money

 

I expect, in practice, judgments will be obtained. I would hope however, that the answer to this question is 'no'.

[AA99]

Reconsidering post in light of further contributions. Will post back soon.

 

 

Me too

[Ruprecht]

We keep going around in circles on this "enforcement" thing.

 

This is Consumer Protection legislation, what else could they mean when they said in it that the creditor could not enforce it, other than "Not be entitled to the money" ?

 

I would think it is common sense that enforcement wouild mean "taking steps to recover the money", the first step being the Default Notice being issued.

 

The regulations even say the default notice has to contain the wording "further enforcement action will be taken". Thus implying that the default notice was one of the steps of enforcement.

 

Something else is going on if a High Court Judge cannot conclude this.

[B3rty]

.

 

Something else is going on if a High Court Judge cannot conclude this.

 

Yep....

[kel123]

If and a big if your a sol acting for consumers - how come you got things ar*s about t*t and missinterpreted the judges remarks - god help your clients

 

Sorry guy your not, you stood out a mile, accept it, have a whisky and go to bed

 

You are comming over as bitter, like a scolded cat (no offence AC) who is reacting at having your fish took away

[Desperate Daniella]

Mickiestar, you still haven't answered my question (post 1460 for your easy reference).

[Desperate Daniella]

Actually here's not here at the moment.

[frettful38]

I have been reading this thread with great interest. I have a loan agreement with a sub prime lender for £35k. I am not in any arrears and up to date with everything. I have been charged over £300 is charges for being in arrears in the past, which I believe have been added to the total loan. I have paid a secret commission without my knowledge or consent too. I did raise these issues with my lender, who basically fobbed me off with their legal jargon, we can do this and we have and tuff luck. I did not pursue this matter as I had other things to deal with.

I had contacted a CMC who initially took on my case and said I had a good chance, then I sent them more info and they just closed my file without any explanation or reason. Since then I have given my a agreement to a Consumer Law solicitor to look at and I am still waiting to hear from him for over 3 weeks. The subject of enforceability is a very sensitive area, and you need to know what you are up against before going down any route of tackling it. I received advice that my loan agreement had many flaws in it, so out of curiosity I needed to did deeper to see if that advice is worth fighting for. The advice I received is below, I would like to see what others views on it are please.

 

1. I contacted Ocean/Finance with the view to borrowing £35k and placed my full trust in OF believing that for paying them a fee (broker's fee) they would in return, act and advise me and guide me in obtaining the best deal they could, and that advice would be unbiased and fair. It was made absolutely clear to OF and the Lender who duly received the form that this was the sum of money I wished to borrow.

 

2. I then duly filled in a loan application form for £35k.

 

3. After passing their criteria checks I received a loan agreement from Blemain Finance Ltd which I duly signed, because I had placed my full trust in OF and the Lender that everything would be exactly as I had requested, I did not completely read all the terms and conditions of the agreement, one of the reasons for this was that they were too small to read, but as I believed that other borrowers had the same agreement, and it had been scrutinised by my broker before hand if had not been as I applied for, I would have been advised so by the broker.

 

However having now magnified the terms and conditions, I am of the opinion:

 

There are certain terms and conditions that could be realistically considered grossly unfair and that the agreement is not as it is stated to be under Consumer Statutes.

As the loan is over £25k (£35k the sum applied for) on its own it is an unregulated unrestricted use Creditor-Debtor agreement and covered by Common Contract law. However

 

1. The total loan shown is more than what I applied for.....I have been misled and misrepresentations have been made to me. I was led to believe that the brokers fees would be taken out of the sum applied for as per Term 11

 

2. I was also led to believe that the acceptance fee would also be taken out of the sum I applied for as per Term 2 (a)

 

3. I was also led to believe that the Solicitor's costs would be taken out of the sum applied for as per Term 18

 

4. I was also led to believe that the Title Insurance would be taken out of the sum applied for as per Term 2 (a)

 

It is now quite apparent that this is/was not the case. It has been ruled by the Courts irrespective of an agreement being regulated or unregulated that Brokers fees are considered charges for credit and therefore cannot be considered as a loan nor can they be added to or included in a Total Loan Amount under any circumstances.

 

It has been ruled that Charges for credit must either be paid before an agreement commences or at the end of an agreement, furthermore as it is a charge for credit no interest can be applied to it as in truth that is what it is NOT a loan.

 

Should Blemain Finance claim that it is indeed a loan in this instance, then it is considered another separate loan and would make the agreement a "Partly Regulated" agreement and should/must be stated as such at the top of the agreement, this would make an agreement and the brokers fee treated as a separate loan agreement.

 

This would have to be shown clearly and would require its own breakdown in monthly payments and the rate of interest shown clearly having its own interest rate shown as APR, variable and not stated as just an interest rate.

 

This loan would be constructed as a Restricted use Creditor-Creditor-Supplier agreement falling into sections 11.1(b) and section 12(b) of the Consumer Credit Act 1974. It would also need to conform to the Consumer Credit Regulations, format of Credit agreements. The same set of rules would apply to the Solicitors fees and the Admin fee and Title Indemnity Insurance.

 

If they are claimed by Blemain Finance that they are charges for credit the agreement must state that they are indeed charges for credit............. and it has been ruled in the Courts that Charges for credit cannot be added to the loan facility and interest cannot be charged on such charges.....Wilson v First Counties Trust Ltd.

 

Under these circumstances I believe that my loan agreement has too many flaws in it to be rectified by a Court and is and would be declared unenforceable.

 

I could stop paying my loan, and wait for BF to start legal proceedings against me as the loan is secured against my house, then I could hit with the information above but I want to see what this Consumer Law solicitor comes back with first and if he agrees with me or not. I would love to hear anyone else's views on this matter, and advise if it is true or not, and what is the best course of action.

 

Thanks in advance as always.

Edited October 24, 2009 by frettful38

[SteEqWar]

Upon reading the case law in this case, It is apparent the claimant could not get an injunction because he had previously defaulted on the credit agreement. In this case refering the information to CRA's cannot be seen as a type of enforcement of the agreement but a truth of the fact that the claimant had defaulted many times. I do not see this case as a very good test case. I would like to know of anyone who had perfect credit up until the time the agreement was deemed unenforcable. This would shed a better light on the whole situation.

 

For those guys who know me on here and know that I had a case going through the court system yesterday. You can note that I won that case.

The case is Jones v Halifax Ltd (Part of Bank of Scotland PLC) 23/10/09 Wolverhampton County Court The case is the first of kind so creates case presidence

 

The case was to do with blocking of debit cards for believed fraud whilst you are abroad, Anyone who has ever had this happen in the past and has suffered a loss becasue of should read the judgement as soon as it becomes available.

 

I will post it on here and also on my own website.

 

The bank relied upon there terms and conditions ie clause 11.6 that if they believe that the card is being used by someone other than the card holder they can block the card without contacting you first. They also maintained to state that I must inform them of all travel plans.

 

Fact was I was totally unaware of this situation the bank did not supply any documentation to me requesting me to do so. In court they tried to supply a document allegedly sent to me with the bank card. Unfortunatly for them. I had the original which must mean they used incorect paperwork in the case.

 

The fact that we go abroad to the same location very frequently and the transaction attempted was not out of place only proves that the transaction was genuine.

 

Halifax lost because of a breach of contract.

Net result Jones £3000 Halifax 0 judgement in my favour

[foolishgirl]

I am very pleased you won yesterday SEW & would be interested to read the judgment when it comes through.

 

However, just to clarify, as the case was heard in the County Court unfortunately it doesn't set a legal precedent although it could be referred to by other claimants/defendants but a DJ is under no obligation to take notice of it.

[sequenci]

For those guys who know me on here and know that I had a case going through the court system yesterday. You can note that I won that case.

The case is Jones v Halifax Ltd (Part of Bank of Scotland PLC) 23/10/09 Wolverhampton County Court The case is the first of kind so creates case presidence

 

The decisions within a County Court do not create precedence matey.

 

EDIT: FG beat me to it!

[SteEqWar]

I have been reading this thread with great interest. I have a loan agreement with a sub prime lender for £35k. I am not in any arrears and up to date with everything. I have been charged over £300 is charges for being in arrears in the past, which I believe have been added to the total loan. I have paid a secret commission without my knowledge or consent too. I did raise these issues with my lender, who basically fobbed me off with their legal jargon, we can do this and we have and tuff luck. I did not pursue this matter as I had other things to deal with.

I had contacted a CMC who initially took on my case and said I had a good chance, then I sent them more info and they just closed my file without any explanation or reason. Since then I have given my a agreement to a Consumer Law solicitor to look at and I am still waiting to hear from him for over 3 weeks. The subject of enforceability is a very sensitive area, and you need to know what you are up against before going down any route of tackling it. I received advice that my loan agreement had many flaws in it, so out of curiosity I needed to did deeper to see if that advice is worth fighting for. The advice I received is below, I would like to see what others views on it are please.

 

1. I contacted Ocean/Finance with the view to borrowing £35k and placed my full trust in OF believing that for paying them a fee (broker's fee) they would in return, act and advise me and guide me in obtaining the best deal they could, and that advice would be unbiased and fair. It was made absolutely clear to OF and the Lender who duly received the form that this was the sum of money I wished to borrow.

 

2. I then duly filled in a loan application form for £35k.

 

3. After passing their criteria checks I received a loan agreement from Blemain Finance Ltd which I duly signed, because I had placed my full trust in OF and the Lender that everything would be exactly as I had requested, I did not completely read all the terms and conditions of the agreement, one of the reasons for this was that they were too small to read, but as I believed that other borrowers had the same agreement, and it had been scrutinised by my broker before hand if had not been as I applied for, I would have been advised so by the broker.

 

However having now magnified the terms and conditions, I am of the opinion:

 

There are certain terms and conditions that could be realistically considered grossly unfair and that the agreement is not as it is stated to be under Consumer Statutes.

As the loan is over £25k (£35k the sum applied for) on its own it is an unregulated unrestricted use Creditor-Debtor agreement and covered by Common Contract law. However

 

1. The total loan shown is more than what I applied for.....I have been misled and misrepresentations have been made to me. I was led to believe that the brokers fees would be taken out of the sum applied for as per Term 11

 

2. I was also led to believe that the acceptance fee would also be taken out of the sum I applied for as per Term 2 (a)

 

3. I was also led to believe that the Solicitor's costs would be taken out of the sum applied for as per Term 18

 

4. I was also led to believe that the Title Insurance would be taken out of the sum applied for as per Term 2 (a)

 

It is now quite apparent that this is/was not the case. It has been ruled by the Courts irrespective of an agreement being regulated or unregulated that Brokers fees are considered charges for credit and therefore cannot be considered as a loan nor can they be added to or included in a Total Loan Amount under any circumstances.

 

It has been ruled that Charges for credit must either be paid before an agreement commences or at the end of an agreement, furthermore as it is a charge for credit no interest can be applied to it as in truth that is what it is NOT a loan.

 

Should Blemain Finance claim that it is indeed a loan in this instance, then it is considered another separate loan and would make the agreement a "Partly Regulated" agreement and should/must be stated as such at the top of the agreement, this would make an agreement and the brokers fee treated as a separate loan agreement.

 

This would have to be shown clearly and would require its own breakdown in monthly payments and the rate of interest shown clearly having its own interest rate shown as APR, variable and not stated as just an interest rate.

 

This loan would be constructed as a Restricted use Creditor-Creditor-Supplier agreement falling into sections 11.1(b) and section 12(b) of the Consumer Credit Act 1974. It would also need to conform to the Consumer Credit Regulations, format of Credit agreements. The same set of rules would apply to the Solicitors fees and the Admin fee and Title Indemnity Insurance.

 

If they are claimed by Blemain Finance that they are charges for credit the agreement must state that they are indeed charges for credit............. and it has been ruled in the Courts that Charges for credit cannot be added to the loan facility and interest cannot be charged on such charges.....Wilson v First Counties Trust Ltd.

 

Under these circumstances I believe that my loan agreement has too many flaws in it to be rectified by a Court and is and would be declared unenforceable.

 

I could stop paying my loan, and wait for BF to start legal proceedings against me as the loan is secured against my house, then I could hit with the information above but I want to see what this Consumer Law solicitor comes back with first and if he agrees with me or not. I would love to hear anyone else's views on this matter, and advise if it is true or not, and what is the best course of action.

 

Thanks in advance as always.

 

I would not cease paying this type of credit agreement an waiting for them to take court action.

I would take the action against the lender. That the terms of the credit agreement are UNFAIR they certainly sound like they are unfair.

 

The problem is that the agreement amount you have is £35,000 the amount should be on what is called an unregulated credit agreement.

 

If the agreement is on the wrong paperwork , which I have seen happen once before with Mercedes Finance where they wrote the agreement on consumer credit act 74 agreement in would look like the agreement doess not match the prescribed terms of law and thus would be unenforable

 

I hope this information helps

[SteEqWar]

The decisions within a County Court do not create precedence matey.

 

EDIT: FG beat me to it!

 

It does when its heard by a District Judge