Unenforceability Cases on hold until further notice

[foolishgirl]

 

Don't panic, Mr. Mainwaring!!

 

Look again at Angrycat's quote here from the company representing Walker, then look below it at pt's quote from another thread made earlier today:

 

"PRESS RELEASE

Dear All,

I would like to bring some remnants of sanity to the subject of the alleged

“100,000 Frozen Unenforceable Credit Agreement claims.”

There is a lot of nonsense being published in the media about a "stay" or "freeze" of all Consumer Credit Act claims. Categorically, this is completely untrue.

There is NO STAY, and NO CASES have been frozen.

This has been confirmed with the Court in Chester this very morning (8th May 2009) by our Legal team, who won the Walker case that is referred to. This is a malicious rumour being put about by those with a very different agenda.

The only thing the Judge is suggesting is that the Court wants to consider what would be the effect if such a stay was brought in.

Our legal team have a meeting booked to discuss this matter in detail on 18th May in Chester, with His Honour Judge Derek R Halbert.

Attached to this email is a copy of the correspondence that has been published by Judge Derek R Halbert of the Chester County Court. Please read this carefully. It is important that you understand the inference of the correspondence. Reports have appeared in the media over the last couple of days stating that Chester County Court has issued a stay on all proceedings relating to unenforceable credit agreements. These reports are incorrect, yet they have appeared in newspapers, websites and various editorials.

The TRUE FACTS are that as a result of a case in the name of Walker at Chester County Court which was appealed to Judge Derek R Halbert and which the lender, Southern Pacific Personal Loans Ltd, lost due to their non-compliance with the prescribed requirements of the Consumer Credit Act 1974. The issue of the appeal related to a specific technical point about what constitutes

the “total amount for credit”.

 

Duncan Pearson

Legal Sevices Director

My Claims Supermarket Ltd"

 

 

'the claims management industry is panicking about a civil circuit judge suggesting that it may be appropriate to hold a series of test cases, now it seems t his panic has transferred to here

 

the facts are that there is NO stay at this time. this matter will not be decided until at least the end of next month. i have spoken to the court manager at Chester High Court on this topic and we have been invited to make representations to the judge and we have done so, primarily on the issue of Consumer protection from enforcement on challenged agreements

 

this has all kicked off because of the Walker case, this district judge who heard the case got it horribly wrong, this lead to the appeal being before HHJ Halbert, he realised the issues and if you read the judgment, he seems very consumer friendly'

 

And just to add to a search for answers as to how all this confusion has come about, can someone explain why the original pdf of this judge's letter posted on CAG has a ref. no. on it that appears to be a claim number derived from the Warrington County Court, starting 9WA00....???

 

Anybody else see that as odd?

[foolishgirl]

i prefer to speak to those who actually know rather than journalists who think they know

 

Seconded!

[foolishgirl]

BBC Radio 4's You & Yours had an article about these claims companies, and the cases being put on hold today. It should be up after 3 PM:

 

BBC - Radio 4 You and Yours - Monday

 

I'm sorry to say it was the usual disinformation and getting the wrong end of the stick as usual

 

Yes, at the end of the prog. but the primary content was having a pot at the companies who promise you they'll get rid of all your debts - just so long as you pay them trillions first! And that kind of publicity can't be all bad.

[foolishgirl]

The DJ asked the othersides solicitor if he was aware that there was likely to be a universal stay on these issues whilst test cases were heard. Idiot solicitor answers 'I think you are mistaken that is only on bank charges' DJ replies (sternly) 'I am not mistaken it is to do with enforceability and if you do not produce an agreement next time we meet this debt IS unenforceable. You can explauin all you like why you do not have an agreement but at the end of the day without an agreement there is nothing you can do to enforce this debt'.

 

IMHO, this has to be a good thing ....

 

....Providing that there is a stay applied, that is...

 

Stay or no stay, it seems this issue has jumped into No1 spot in the judiciary's sight & that can't be bad. Maybe it will have a few DJs brushing up on Consumer Credit legislation.

[foolishgirl]

Well done Paul, another one bites the dust

[foolishgirl]

Can anybody tell me if ANYONE has ever had any debt eliminated at all?

 

Yes, yes, yes!! Look in the Sucessess.

 

It IS confusing when you first start reading on here, there are just so many issues (not to mention sub issues) but you will find that lots of reading will make it all clearer & if you have a specific problem you want advice on, just post up in the appropriate forum & someone will come along to help.

[foolishgirl]

Usually, if they are all been heard together, which is suggested here, the outcome is probably already determined and will be applied to all the cases at the same time.

 

From what I can gather it would seem that the purpose of the conference is to advise everyone involved in this matter about how the court has decided to proceed rather than discuss individual cases or listen to individual arguments.

My girlfriend is panicking about this now and insisting I am represented but I think that will be a waste of money I have not got .

Firstly whoever I could find at this short notice would know nothing about the case and it does not even sound like there will be any need for any input on my part,what do you think?

 

If the decision on how to proceed has already been made by the court on these cases, (which as car says, seems likely) IMO you'd be unlikely to gain anything by employing a pro. at this stage. You might like to see if a CAG buddy in your area is available though to listen in/advise - click the link at the top of the page.

 

Please do start a new thread TD & let us know how you go on, this could be vital information to all CAGers.

[foolishgirl]

Incidentally I do not understand why the case was transfered to Chester when I live in Manchester unless its got something to do with the MBNA connection.

When I submitted my AQ I asked for the case to be transferred to Altrincham

 

I don't understand that either particularly as you are an LIP against a big company but it does happen sometimes.

[foolishgirl]

I love irony but I just don't get it -I'm American

 

If you 'get' the CCA 1974 TD, & all it's implications (and you clearly do) irony should be easy to master, particularly if you read this forum; in fact it's a pre-requisite of membership! :D

[foolishgirl]

This does seem a particularly 'odd' case on which to apply to the Commercial Court for a decision as the agreement was actually enforceable & one does wonder if the barrister for the claimant was clutching at straws to justify his cause. That said, I think you can probably sum up this judgment & its implications for any other case in Justice Flaux's own words

 

'76. However, nothing in either sections 76 or 87 can be said to give one any real clue as to the parameters of the concept of enforcement, for the purposes of determining what, if any, action by the creditor is permissible during the period when the agreement is unenforceable by virtue of section 77(1)...'

 

i.e. nothing changed...

[foolishgirl]

The case was weak and should not have been put forward as a test case!

 

Not sure if a case involving an unenforceable agreement would have altered the outcome.

 

I agree. I think the issue of enforceability as far as this case & the judgment was concerned was immaterial. As I understand it, the primary point that HH is making is that once an agreement is signed (regardless of whether it complies with S60 or not) that agreement continues to exist, enforceable or not.

 

The appeal to the court was to decide whether reporting to a CRA etc. was to be catergorised as 'enforcement action' as determined by CCA1974 i.e. could data still be passed to a CRA on an agreement that everybody knew could not be enforced by the court? The answer was 'yes' because reporting of data does not constitiute 'enforcement' - only legal action does that - & the status of unenforcability does not nullify the entire agreement. Therefore reporting will continue as a perfectly legal action.

 

The issue of 'fairness' under UTCCR cannot be tested by consumer action, that will be up to OFT etc.

 

Interestingly HH declined to comment on exactly how the consumer could seek redress under these circumstances but IMO it is implied that action could be taken.

[foolishgirl]

I have 5 creditors reporting defaults

 

Mint

1st Credit Direct DCA Barclays Bank

Lloyds

HFC

Marlin DCA HFC Bank

Citicard

 

Subject access all and

None of the above have even got a credit agreement let alone one signed

Does this mean that I can not continue try to get the defaults removed.

 

IMO if you could prove that the OCs had not got an agreement at all, you may have grounds for the removal of defaults; however if an agreement is produced, enforceable or not, in the light of this judgment, you will struggle to get the defaults removed.

 

However the proof of the pudding is in the eating & I guess your first call should be a CPR 31.16 herbie to try & flush out the possibility of the actual existence of an agreement(s).

[foolishgirl]

I'd disagree with that - and (I don't mean to offen you here) but you seem to be in the same "rut" that the courts are in by thinking that the only form of "enforcement" is compulsorily obtaining payment.

 

I'm not offended heliosfa - I always welcome a debate.

 

Note though that I didn't say I agree with the judgment, I was just trying to summarise Judge Flaux's opinion.

 

In a case of temporary unenforceability, I would put that a creditor (if one went by the book) would have to cease passing data for the period of unenforceability BUT could leave what data there was there (e.g. the current balance and previous payment history) and start sharing again when the agreemet became enforceable. Whether they could mark payments due during the unenforceability as late when they can share data again is a bit odd as all of the terms of the agreement should have been effectively on "hold", so no payments would have been due but the liability would still have existed.

 

I agree

 

Now, as for when the agreement is irrevocably unenforceable (127(3)), the HoL deemed that a creditor is to have "Gifted" the money to the debtor. In this case, I would argue that there is no credit relationship and therefore any data shared with the CRAs implying or saying that there is a credit relationship is inaccurate and would need to be corrected.

 

However, again, I would argue that the CCA uses the term "the agreement can only be enforced on the order of the court" and therefore all of the "terms" are on hold again.

 

However this is not what HJ is saying.

 

Where there is no agreement of the creditor has lost/destroyed/eaten/fed-to-the-dog the agreement then I would put that the creditor cannot proove you agreed to any of the terms of the agreement (except possibly that you would make payment, which would also be unobtainable without the agreement) and therefore has no "right" to any of the alleged additional terms.

 

In this case I don't think you can say any agreement exists, therefore you have not agreed to data sharing. Unfortunately this was not in the remit of this particular case so we all wait for another 'test' case...

 

 

FG

[foolishgirl]

Hi all,

 

An interesting case, wrongly decided, in part due to the claimant's legal team's conduct of the case.

 

I am not having a go at them because I know how you can be blindsided when concentrating on other points.

 

 

Go on, have a go at them dad!

 

These are barristers, supposedly trained & experienced in the law. They are not LIPs, they should not be 'blindsided' by legal argument. They had plenty of time to prepare for this case, they knew they were up against the big boys & IMO not have they failed their client they have failed consumers in general

 

Your points are particularly relevant. Mr McGuffick would have done well to employ you as his legal advisor.

[foolishgirl]

Useful link artie but this is the judgment not transcript i.e. you can't tell from this exactly what points were made by the individual lawyers

[foolishgirl]

Does the transcript get published as a matter of course?

 

No, not usually, one of the parties usually applies.

 

There are costs involved too!!

[foolishgirl]

a

 

HOWEVER, what does the CCA say? does it say that one particular term becomes unenforceable or the entire agreement (a collection of terms)?

 

 

This is the whole point H, the CCA does not make it clear & Judge Flaux said exactly that.

 

Version 3 Defaults: A guidance note

02.08. 2007

 

45 We will not necessarily ask a lender to remove default records while they are carrying out their initial investigation to establish whether a dispute is genuine, reasonable or unsolved. However, there should be no unnecessary delay in this investigation. In these circumstances, defaulted accounts under investigation should be marked as ‘under query’ on the credit reference agency file.

 

Isn't this what occurred in the McGruff case?

 

As I've said before, an odd case to take to the Commercial Court for clarification when there are so many other issues that could have been dealt with in an appropriate case

 

[foolishgirl]

 

 

However, what does the word "enforce" actually mean? answer - to take advantage of.

 

 

Sorry H, the Oxford dictionary describes 'enforce' as 'to 'compel compliance with (a law, rule or obligation)...'

 

Now, playing devil's advocate - where an agreement is unenforceable, this means that the creditor cannot compel the debtor to repay or comply with any other term of the agreement; however does that also mean that it is reciprocal i.e. the debtor can compel the creditor to abandon all the terms of the agreement? Hmm...

[foolishgirl]

i fully agree car, but in this case the claimant made a decision not to contest the validity of the agreement in order to pursue the argument over reports to CRA's

 

so as far as my (untrained) legal eye can see - he shot himself in the foot

 

Not sure he had a choice re. the validity DD - he acknowledged it. However I do think he (or his legal advisors) were ill advised to pursue the claim in the way he did. Which is exactly why IMO this case will serve no useful purpose at all except to give the creditors an excuse to muddy the waters with unaware debtors.

[foolishgirl]

I wonder if a CMC was involved, or if his representatives had even read the CCA?

 

 

The claimant was represented by Andrew Moran QC & Brendan Burke instructed by MJP Justice Ltd.

 

According ot his website Andrew Moran seems to specialise in:

 

• General Commercial Litigation with a bias towards all aspects of shipping law
  
• Personal injury – including accidents at sea, on offshore installations and in ports & harbours
  

Andrew Moran has a particular speciality in claims & prosecutions arising from marine and river pollution

• Financial Services matters
  
• Professional negligence with particular expertise in clinical negligence
  
• Regulatory matters –arising in Environmental Law & Health and Safety Law
  

and MLP Justice seem to concentrate on personal injury compensation claims.

 

So that probably says it all!

 

Would you have chosen these people to represent you in relation to a Consumer Credit case???

 

Wonder if they arrived at court in a boat? And what was its cargo?

[foolishgirl]

spot on- in the full knowledge that the only way you can get out of that situation is to litigate against them and ask for a ruling

 

That makes NO bloody sense!

 

Looks as though consumers have, yet again, to force them to be sensible then doesn't it? I can see more claims to add to the bank charges fiasco being pushed through the courts.

[foolishgirl]

 

Please could somebody paste up a quickie for S127 and S142

 

What sort of a quickie do you want AA? (Please keep it clean! )

[foolishgirl]

I'm interested in all thing legal. I'm studying towards a Law degree [LLB(hons)] at Nottingham Law School

 

Oh excellent, sequenci - what a star! Another pt in the making?

[foolishgirl]

Under those circumstances you would find yourself sectioned under the Mental Health Act

LIBM

:D

 

As you all have such vivd imaginations, maybe you should all get together & write a whodunit!

 

This thread is not about criminal law i.e.murder, it is civil law i.e. unenforceability issues. Can we please get back to those?

[foolishgirl]

You can't expect the media who get most of their income from adverts from the banks to publish the truth and wipe out their best customer.

 

Don't think it's even that Ruprecht. It's basically just lazy journalism. The press get fed biased press releases by the bank/CRAs, they see an eye catching headline in it & drag out the soundbites from the release. Hey presto, another article hits the presses & the writer gets home early!

 

I wonder if a case involving a default on an unenforceable agreement would ever make it that far anyway? The banks would probably cave in if they knew you were intending to take it all the way.

 

This case wasn't about unenforceable agreements so has no relevance for them anyway. Business as usual for CAGers!!

 

FG