Unenforceability Cases on hold until further notice

[angry cat]

Some good info in here AC

 

[ATTACH]13138[/ATTACH]

 

Citizens Advice welcomes the statement in the Guidance that it is a misleading and unfair business practice for businesses to give the false impression that it could obtain a judgment by threatening legal action where it is aware that because of non-compliance it could not obtain a court order to enforce the agreement (paragraph 5.3). This is particularly helpful in situations where businesses that have not complied with ss77 – 79 tell the consumer that, although the agreement may be unenforceable under ss77 – 79, the debt is still recoverable under common law. Presumably, this would also apply where an agreement is unenforceable due to improper execution and the business says that the debt is nevertheless recoverable under common law.

 

Good find Main Man!

 

90:

 

...Nothing in the Regulations (CPUTR's) confers any right on any individual or makes any remedy available to an individual and, indeed, the fact that an agreement with an individual is not void and unenforceable, even if the trader or creditor is in Breach of the Regualtions, points strongly against it having been intended to confer any such right."

 

"...the UK government deliberately excluded any civil law remedies from the Regulations"

 

The OFT/local weights and measures authorities appear to be reluctant to enforce against Banks?

 

What a sorry state of affairs!

[kel123]

Everytime I come on this thread there are always guests looking in - do you think that (them) they have got the message that this ruling at first sight was a negative but upon reflection as opened more doors and given them (they) less manovering space

 

Boiled I think you are making a leap too far in including s78 it was made clear that he is only dealing with s77

[diddydicky]

Yes, the debt still does exist. BUT they have no entitlement to take advantage of any term of the unenforceable agreement.

 

OK, if the agreement didn't say anything about sharing data, would they have the right to?

 

If the agreement gave them the following rights:

• Receive payments from you of £1000
  
  
• Charge interest at 5%
  
  
• Add Late Fees
  
  
• Share data with 3rd parties
  
  
• sell the agreement
  
  

and the agreement is unenforceable, which of those rights, granted by the agreeement, are they allowed to enforce and take advantage of?

 

If they are only not allowed to obtain payment, but are allowed to enforce every other right, then the only this not enforceable would be obtaining payment.

 

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

 

 

As for us "sharing" data, it is not a right granted by an unenforceable agreement. For companies to share data, they MUST have a contractual right to do so. Additionally, us sharing our experiences and knowledge are not going to stop that company obtaining a mortgage or being employed.

 

H

 

i think you will find that the signed application form often gives the right to share data

 

IMO most of us on here got into trouble BEFORE we started looking for solutions. for my own part i am realistic in my expectations of a satisfactory outcome and for me that doesn;t include getting out of the situation i am in AND having a clear record to be able to get into the **** again

 

thats me- others i accept may have a different view

[heliosfa]

i think you will find that the signed application form often gives the right to share data

 

IMO most of us on here got into trouble BEFORE we started looking for solutions. for my own part i am realistic in my expectations of a satisfactory outcome and for me that doesn;t include getting out of the situation i am in AND having a clear record to be able to get into the **** again

 

thats me- others i accept may have a different view

Yes, I agree that the signed application (what most lenders consider the Agreement it seems) gives the contractual right to share data, but if the agreement cannot be enforced, neither can this term.

 

I agree, and I think a distinction I should make is FURTHER data sharing from the point where the creditor becomes aware of the unenforceability is what I have an issue with (unless the agreement was completely iredeemably unenforceable from the start, and is therefore a "gift" relationship and not a Creditor Debtor Relationship).

 

 

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

The CCA makes it clear that it is the agreement that becomes unenforceable (all the terms, not just one) but it does not specifiy what enforcement is, I'll agree with that.

 

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

 

 

I hope this kind of makes sense :S

H

[diddydicky]

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

 

I think it says that whilst the creditor is in default of its obligations under a s77/79 request the creditor may not enforce the agreement

 

since the judge in this case just made a decision that reporting to a CRA is not considered to be enforcement then it would appear that the creditor has done nothing wrong in reporting to CRA's whilst in default of s77/79!!

 

i think perhaps you are confusing the narrow confines of this judgement with wider aspects

[joemay]

i think you will find that the signed application form often gives the right to share data

 

IMO most of us on here got into trouble BEFORE we started looking for solutions. for my own part i am realistic in my expectations of a satisfactory outcome and for me that doesn;t include getting out of the situation i am in AND having a clear record to be able to get into the **** again

 

thats me- others i accept may have a different view

 

Not all applications - some only state sharing if they discover fraud of the application and if there is insurance applied for. They do not state on how your account is handled;). Therefore if there is only an application form without prescribed terms and the sharing on your account handling they surely can not process.

[diddydicky]

Not all applications - some only state sharing if they discover fraud of the application and if there is insurance applied for. They do not state on how your account is handled;). Therefore if there is only an application form without prescribed terms and the sharing on your account handling they surely can not process.

 

don't know the answer to that one JM- just pointing out that often (but not all as you say) the permission is given and i dont see any clause saying that if credit is not granted then the permission is withdrawn

 

after all even an application for credit is recorded on your cra - and too many in a short space of time will affect your credit score

[heliosfa]

I think it says that whilst the creditor is in default of its obligations under a s77/79 request the creditor may not enforce the agreement

Therein lies my point!

 

since the judge in this case just made a decision that reporting to a CRA is not considered to be enforcement then it would appear that the creditor has done nothing wrong in reporting to CRA's whilst in default of s77/79!!

This is why it is a Rankine moment for me... It seems that the Claimants counsel was not well prepared. Even the person who WROTE the act considers Enforcement to be "take advantage of".

 

HOWEVER the judge also considered that, as the creditor was going to correct the default, it would therefore not be useful to grant an injunction preventing the sharing.

 

H

[joemay]

How many other test cases are to be heard and when? Hopefully they won't be like this one, surely it will be a different ball game when dealing with an unenforceable CCA.

[car2403]

Let's look at it another way - when challenged, previously, why were so many companies willing to remove CRA information when the debt was discovered to be unenforceable? Because they know they shouldn't be doing it, that's why. Not a legal basis, but still needs some consideration.

 

I've had about 10 Defaults removed, all because the agreements were unenforceable. Some went to Court, defended against me, but capitulated eventually. (Sadly, 1 remains, as that agreement wasn't irredeemably unenforceable )

[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...

[diddydicky]

Therein lies my point!

 

 

This is why it is a Rankine moment for me... It seems that the Claimants counsel was not well prepared. Even the person who WROTE the act considers Enforcement to be "take advantage of".

 

HOWEVER the judge also considered that, as the creditor was going to correct the default, it would therefore not be useful to grant an injunction preventing the sharing.

 

H

 

but if you read the judgment the claimant himself accepted that reporting to the CRA did not constitute enforcement-

 

bit difficult for a claimant to get a judge to make a decision opposite to that which he himself accepts i think

[car2403]

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...

 

The way I understand the Act, is that the Creditor cannot enforce the debt against the debtor, but the debtor can still use the facility, etc.

 

This is the CONSUMER Credit Act, not the CREDITOR Credit Act, after all. :-|

[diddydicky]

Let's look at it another way - when challenged, previously, why were so many companies willing to remove CRA information when the debt was discovered to be unenforceable? Because they know they shouldn't be doing it, that's why. Not a legal basis, but still needs some consideration.

 

I've had about 10 Defaults removed, all because the agreements were unenforceable. Some went to Court, defended against me, but capitulated eventually. (Sadly, 1 remains, as that agreement wasn't irredeemably unenforceable )

 

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

[car2403]

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

 

indeed. numpty claimant, numpty claimant representative.

 

****ed on his own bonfire, so to speak.

[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.

[Tricky Dickie]

indeed. numpty claimant, numpty claimant representative.

 

****ed on his own bonfire, so to speak.

 

I wonder how carefully the copy of the alleged executed agreement sent by RBS in May had been audited for all the possible unenforceability issues and whether the claimant and his representative got sidetracked by the CRA reporting issue.

If this is the case do they still have the opportunity to review the agreement and contest the enforceability if grounds for this are found?

[kel123]

Tricky you sound like me! consperacy theories indeed. They had no need to doctor just wait for the best opportinity. However I do think the rankalots are a different kettle of fish?

[heliosfa]

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...

Other meanings:

1. The act of enforcing; compulsion.

2. A giving force to; a putting in execution..

3. That which enforces, constraints, gives force, authority, or effect to; constraint; force applied.

 

4.To keep up, impose or bring into effect something, not necessarily by force.

5.To give strength or force to; to affirm

[diddydicky]

I wonder how carefully the copy of the alleged executed agreement sent by RBS in May had been audited for all the possible unenforceability issues and whether the claimant and his representative got sidetracked by the CRA reporting issue.

If this is the case do they still have the opportunity to review the agreement and contest the enforceability if grounds for this are found?

 

seems to me from reading it that the claimant willingly sidetracked it and was blinkered to just the one issue

 

the word Numpty is appropriate i think and as foolishgirl says- did none of us any favoure

[car2403]

I wonder how carefully the copy of the alleged executed agreement sent by RBS in May had been audited for all the possible unenforceability issues and whether the claimant and his representative got sidetracked by the CRA reporting issue.

If this is the case do they still have the opportunity to review the agreement and contest the enforceability if grounds for this are found?

 

Absolutely, yes.

 

The obligation to provide copy documents under s.77/s.78 endures, even after Judgment has been entered for the debt, so long as there's a remaining balance due.

 

What is interesting about that, though, TD, (which I mentioned earlier, too) is that all my challenges regarding enforceability under the CCA resulted in the remaining outstanding balances being written off, so the Creditors then claimed that there was no obligation to provide copy documents under the CCA as there was no amount owing. This Judgment, IMHO, is going to be used in those instances, where we challenge data recorded with CRA's in that instance - IMHO, they can't report an inaccurate repayment history, (back to DPA issues, but that's another thread and is covered elsewhere) where there never was a legal obligation to repay the debt in the manner agreed. I think this is the issue that this Claimant has focussed on, incorrectly - he should have went for Default removal on the basis that the agreement was unenforceable, which is what I did. (Search "car2403" in thread titles to see my threads) Of course, though, with an enforceable agreement, his point was moot, as they could have just Defaulted him after complying with the Copy Document regs, which is why this is such a bad press for unenforceable agreement claims.

 

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

 

[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?

[Undercover-Elsa]

Well he was certainly all at sea on Tuesday!

[angry cat]

Yes, I also checked out the no-win-no-fee firm and Mr. Andrew Moran QC.

 

by foolishgirl:

 

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

 

e.g. would one consult a heart consultant, if one had a sight disorder?

[JonCris]

I won't go into to the why's & wherefore's that's already been done other than to say this judgement is bad law in that a consumer simply exercising their legal rights can be deemed as untrustworthy when it come to obtaining future credit. In other words creditors can form a black list of those who have succeeded in enforcing their lawful rights making it difficult if not impossible for them move on in any meaningful way