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    • Sorry to hear about the "playground insults".    The fact you didn't write "without prejudice" means the letter could be produced in court, not that the PPCs ever seem to do so.  Well, so what?  Minister Baywatch HAVE made up fictitious charges.  Courts HAVE told the PPCs off for this numerous times.  DDJ Harvey DID go ballistic about this.  I don't' see what's wrong in refuting a claim and referring to a persuasive court case to back up your position. 
    • Thanks Dx. I have tidied the defence up with your suggestions amended. Does it look right now? Thanks!   1.    Monies due under current account facility xxxxxxxxxxxx. The claimants claim is for the balance outstanding under the facility provided by Halifax to the defendant. It was a term of the bank account that any debit balance would be repayable by the defendant in full on demand.   2.    The defendant has failed to repay the amount due following the service of a demand.   3.    The debt was assigned to the claimant.   4.    The claimant therefore claims 1. 5k 2. costs   Defence   1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.     2. The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.    3. The Claimant’s Particulars of Claim fail to state when the agreement was entered into.   4. Paragraph 1, Whilst I accept that I have in the past held a current account with Halifax Bank Plc. I have not serviced this account since 08/07/2016 due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. The amount claimed is far in excess of any agreed overdraft limit with Halifax Bank. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being applied to the account. It is therefore denied that I am indebted for any alleged outstanding residue.    5. Paragraph 2 is denied as the original creditor has failed to serve a Notice served under 76(1) and 98(1) of the CCA1974 Demand / Recall Notice and the Claimant is put to strict proof to evidence any breach.    6. Paragraph 2 is further denied as i am unaware of Halifax Bank ever providing me with a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand / Recall Notice and Notice of Assignment.   7. Paragraph 3 is denied. I am not aware or ever receiving any Notice of Assignment pursuant to the Law of Property Act 1925. It is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.   8. Paragraph 4 is denied. I refute the claimants claim is owed or payable. The amount claimed is comprised of amongst others default penalties/charges levied on the account for alleged late, missed or over limit payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbeyicon National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.   9. As per Civil Procedure icon Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed. The claimant is also put to strict proof to:-.     a. Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, which this claim is based on. b. Provide a breakdown of their excessive charging/fees levied to the account with justification. c. Show how the Claimant has reached the amount claimed. d. Show how the Claimant has the legal right, either under statute or equity to issue a claim. (f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.   e. Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.   10. On receipt of this claim I immediately requested documentation by way of a CPR 31.14 request, which was received by the Claimant on the *******. The Claimant has failed to comply with this request. Therefore the claimant in their non compliance to my requests have frustrated my attempts to clarify their claim and against pre action protocol should be considered when the question of costs arise.     11. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.    
    • MPs are pushing authorities to respond to allegations of potential fraud at certain banks, whereby it’s claimed home repossession documents weren’t actually signed by the authorised signatory View the full article
    • Thanks Dx. Amended defence set out below. Does it look right now?   1. By agreement between the defendant and Halifax on or around the 3/3/2015 (the agreement) Halifax agreed to loan the defendant monies.     2.The defendant did not pay instalments as they fell due.     3.The agreement was terminated following a service of a default notice.     4.The agreement was assigned to the claimant.     5.The claimant therefore claims 1. 4.5k 2. Costs    Defence   1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.     2. The Claimant has not complied with paragraph 3 of the PAPDC (Pre Action Protocol) Failed to serve a letter of claim pre claim pursuant to PAPDC changes of the 1st October 2017. It is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.     3. Paragraph 1 is denied. It is accepted that I have had financial dealings with Halifax in the past. However I do not recall entering into any financial agreement with Halifax on or around 03/03/2015 and have sought verification from the claimant who has not complied with my request for further information.     4. Paragraph 2 is denied. I am not aware of any payment terms for the stated agreement.     5. Paragraph 3 is denied. It is denied that Cabot Financial served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.   6. Paragraph 4 is denied as I am unaware of any legal assignment or Notice of Assignment allegedly served by either the claimant or the original creditor.     7. It is therefore denied with regards to the Defendant owing any monies to the Claimant; the Claimant has failed to provide any evidence of credit agreement / assignment / balance / breach requested by CPR 31.14, and remains in default of my section 77 request, therefore the Claimant is put to strict proof to:   a. Show how the Defendant has entered into an agreement; and   b. Show how the Defendant has reached the amount claimed for; and   c. Show how the Claimant has the legal right, either under statute or equity to issue a claim     8. On receipt of this claim I requested by way of Royal Mail on 13/10/20 a CPR 31.14 request from the claimant’s solicitors and a section 77 requests to the Claimant, for copies of the documents referred to within the Claimant’s particulars to establish what the claim is for. To date the Claimant has failed to comply with my section 77 request and their solicitors, Mortimer Clarke, have refused my CPR 31.14 request.     9. As per Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.     10. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82 A of the Consumer Credit Act 1974     11. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.  
    • I'm generally convinced that there is at least 2 users on MSE that's in my thread that has friends or family or even themselves that have similar line of work to MB or Gladstone.   I don't mind different opinions but they're just throwing out playground insults to me for using that letter saying I'm stupid, prat, idiot etc etc for doing it and not including in the letter without prejudice so it can't be used against me in court. I think I'll leave MSE and just stick with CAG and in this case.    
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    • I came across this discussion recently and just wanted to give my experience of A Shade Greener that may help others regarding their boiler finance agreement.
       
      We had a 10yr  finance contract for a boiler fitted July 2015.
       
      After a summer of discontent with ASG I discovered that if you have paid HALF the agreement or more you can legally return the boiler to them at no cost to yourself. I've just returned mine the feeling is liberating.
       
      It all started mid summer during lockdown when they refused to service our boiler because we didn't have a loft ladder or flooring installed despite the fact AS installed the boiler. and had previosuly serviced it without issue for 4yrs. After consulting with an independent installer I was informed that if this was the case then ASG had breached building regulations,  this was duly reported to Gas Safe to investigate and even then ASG refused to accept blame and repeatedly said it was my problem. Anyway Gas Safe found them in breach of building regs and a compromise was reached.
       
      A month later and ASG attended to service our boiler but in the process left the boiler unusuable as it kept losing pressure not to mention they had damaged the filling loop in the process which they said was my responsibilty not theres and would charge me to repair, so generous of them! Soon after reporting the fault I got a letter stating it was time we arranged a powerflush on our heating system which they make you do after 5 years even though there's nothing in the contract that states this. Coincidence?
       
      After a few heated exchanges with ASG (pardon the pun) I decided to pull the plug and cancel our agreement.
       
      The boiler was removed and replaced by a reputable installer,  and the old boiler was returned to ASG thus ending our contract with them. What's mad is I saved in excess of £1000 in the long run and got a new boiler with a brand new 12yr warranty. 
       
      You only have to look at TrustPilot to get an idea of what this company is like.
       
      • 3 replies
    • Dazza a few months ago I discovered a good friend of mine who had ten debts with cards and catalogues which he was slavishly paying off at detriment to his own family quality of life, and I mean hardship, not just absence of second holidays or flat screen TV's.
       
      I wrote to all his creditors asking for supporting documents and not one could provide any material that would allow them to enforce the debt.
       
      As a result he stopped paying and they have been unable to do anything, one even admitted it was unenforceable.
       
      If circumstances have got to the point where you are finding it unmanageable you must ask yourself why you feel the need to pay.  I guarantee you that these companies have built bad debt into their business model and no one over there is losing any sleep over your debt to them!  They will see you as a victim and cash cow and they will be reluctant to discuss final offers, only ways to keep you paying with threats of court action or seizing your assets if you have any.
       
      They are not your friends and you owe them no loyalty or moral duty, that must remain only for yourself and your family.
       
      If it was me I would send them all a CCA request.   I would bet that not one will provide the correct response and you can quite legally stop paying them until such time as they do provide a response.   Even when they do you should check back here as they mostly send dodgy photo copies or generic rubbish that has no connection with your supposed debt.
       
      The money you are paying them should, as far as you are able, be put to a savings account for yourself and as a means of paying of one of these fleecers should they ever manage to get to to the point of a successful court judgement.  After six years they will not be able to start court action and that money will then become yours.
       
      They will of course pursue you for the funds and pass your file around various departments of their business and out to third parties.
       
      Your response is that you should treat it as a hobby.  I have numerous files of correspondence each faithfully organised showing the various letters from different DCA;s , solicitors etc with a mix of threats, inducements and offers.   It is like my stamp collection and I show it to anyone who is interested!
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Unenforceability Cases on hold until further notice


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The question raised was that of a Creditor recording a Default against the Debtor while in default of the CCA request, only, so that is all it applies to.

 

So if an agreement is unenforceable, would a creditor not supply it to a person requesting it just so they can keep the default on the file?

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So if an agreement is unenforceable, would a creditor not supply it to a person requesting it just so they can keep the default on the file?

 

I think so. Looks like that happened here - although they provided the agreement before he challenged the Default, I think, even though it was outside the prescribed term for providing it under the Act.

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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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??? :-o

 

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

 

The name Titanic comes to mined.

LIBM

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So if an agreement is unenforceable, would a creditor not supply it to a person requesting it just so they can keep the default on the file?

 

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

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Originally Posted by haggis1984 viewpost.gif

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

 

This is blantantly incorrect - Im certain that the judge stated RBS has acted appropriately during the period of non-compliance with s77 precisely because they didnt take these actions.

 

 

None of the above are technically 'enforcement' though?!

 

My reading of the judgement was:

 

RBS failed to comply with s77

Some time passes

RBS does comply with s77

RBS begins collections/legal action

 

The judge found that sharing info with CRAs was not enforcement - consequentley this was appropriate during the period of non-compliance.

 

The credit today article posted earlier stated that none of the above (defaulting/issuing proceedings etc) constituted enforcement. Unless I misunderstood (which to be fair is more than likely!) there was a section in the Mcguff judgement regarding these issues - in which the judge stated that it had been appropriate that RBS had ceased collection activity during the period of non-compliance with s77. (Aside from one collections letter which was issued 'in error')

 

Leads me to belive that the judge did interpret those actions (defaulting, initiating proceedings etc) as enforcement (being as they were disallowed during non-compliance with s77).

I have no legal qualifications whatsoever, so please check any input I have for accuracy. And please correct me if you disagree!

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That makes NO bloody sense!

 

Agreed, and it will continue until numpty Judges decide to enforce the law correctly, in which case a spate of losses would mean they need to change their processes to actually comply with the law and remove inaccurate Defaults and write down unenforceable balances. :mad:

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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The name Titanic comes to mined.

LIBM

 

Well at least none of us are going down with them!

I have no legal qualifications whatsoever, so please check any input I have for accuracy. And please correct me if you disagree!

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Well, at least the judgement does solve one query.

 

RBS, have for some time been sending out 100's of letters to members stating along the lines of:

 

We have mislaid your credit agreement;

We cannot pursue you through the Courts due to s78(6);

You, however, must meet your obligations under the agreement, bearing in mind that it is not void but remains valid;

Your continuing default will be reported to the CRA's, which may affect your ability to obtain credit etc...

 

"the bank has confirmed that it is unable to enforce the agreement, it's standard practice is not to pursue legal action against the customer and to put a stop to all collection activity, so as not to give the FALSE IMPRESSION that it is entitled to obtain judgment."

 

Note, the use of the words; false impression and entitled to obtain judgment.

 

[Emphasis] RBS have in many cases been unable to provide any credit agreement at all, let alone a credit agreement that complies with with the requirements of the Act, together with the correct terms & conditions.

 

How many members have received conjectured reconstructions, that bear no resemblence to what the original credit agreement would have looked like.

 

But of course, RBS would not wish to give a False Impression to it's customers or, more importantly, a Court.

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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.

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Held: Defaulting me wasn't "enforcement", so no Court order was needed, had they wanted an Order, the Court would have given them one, so I still end up with a Default.

Challenging a DN triggered by failure to pay allegedly unlawful charges is not quite the same thing as challenging a DN backed by an agreement allegedly defective in its construction. The judge in the aforementioned case saw card penalty charges same as bank "service fees" a la the OFT Test Case, which was surprising given that DJ Cooke clearly stated that his view on "bank charges" were very different from his view on card charges, granted though DJ Cooke ruled on Kevin-v-Lloyds in a lower court.

 

Enforcement by law amounts a compulsion to repay a certain sum of money in the future.

 

Issuing a DN and recording a failure-to-pay blackmark with CRA publicizes events in the past and stops with this publication, in itself not legally pressing for repayment. Issuance of a DN neither legally compels the creditor to proceed to court, nor legally compels the debtor to repay. DN opens the door to future legal compulsion but does not itself go through it.

 

It is possible to question if, in the eyes of the judge, publicly recording past events constitutes legal compulsion towards future action backed by the court. Many debtors simply ignore DN and blackballing. Where there is no attempt to seek legal compulsion to repay, the judge may not recognise the existence of legal compulsion. If the debtor wished to file for libel that would be a different case.

 

In connection with agreements enforceable only by court ruling, and in connection with agreements irredeemably unenforceable, from the latest case it looks like two different standards of proof are adopted -- a higher standard required to enforce debt repayment, and a lower one to sanction reporting to CRA.

Edited by Mistermind
for clarity

 

 

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That makes NO bloody sense!

 

apologies you post at first read that they would NOT supply it to the debtor-

 

it seemed more logical that the creditor would be more likely to WITHOLD an unenforceable agreement so as to protect his mis use of reporting to CRA's hence my comment

Edited by diddydicky
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I have got the feeling that a lot of people are panicking unnecessarily.

 

This judgement basically changes nothing. We all know that an unenforceable agreement does not mean there is no balance showing on an alleged account. Only litigation can clarify if there is a liabilty to the debt. The creditors may not follow that route but they still claim that there is a debt.

 

That is sufficient reason why they can report to CRA's regardless of what we would like, but there are others. I am sure that RBS are fully aware of when they can report and when they cannot.

 

We still need to focus on the main issue which is the enforceabilty of the agreement. If we go to court and win and there is no debt, the general opinion is that the money is therefore a 'gift' and we could claim compensation for the adverse reports.

 

It depends how and why we win but the main thing to take from this is the fact that a lot of people believe that they will get no adverse reports. Anyone who has suggested this in threads I have been involved in will know I always disagree and point out the danger.

 

Some of the CMC's have not helped because they falsly claim it will not affect your credit rating which is one reason why the MOJ pick on them.

 

I am afraid that it is similar to the law of Cause and Effect.

 

Thats my opinion and I am sure that many will not agree but I think that new caggers should start with that idea and any better result is a bonus.

 

Pedross

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I personally gave up ages ago worrying about my credit file as I have managed all my agreements to the point where they have admitted they can't enforce and I have done everything except litigate to get these removed to no avail.

 

My 6 years are up in 2012 so its wait until that time...

 

This does throw up an interesting question on how we advise newcomers at CAG as I see so many posts telling people to stop paying ect when the DCA sends a reconstituted agreement, even after all this time experienced CAGers don't understand the difference between a s.77/78 request and enforcement

 

This judgement now makes it quite clear to the DCAs what they can call enforcement and the grey area is when they return a reconstituted agreement as in their book they have complied and the account isn't in dispute so they will carry on collection activity.

Live Life-Debt Free

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I personally gave up ages ago worrying about my credit file as I have managed all my agreements to the point where they have admitted they can't enforce and I have done everything except litigate to get these removed to no avail.

 

My 6 years are up in 2012 so its wait until that time...

 

This does throw up an interesting question on how we advise newcomers at CAG as I see so many posts telling people to stop paying ect when the DCA sends a reconstituted agreement, even after all this time experienced CAGers don't understand the difference between a s.77/78 request and enforcement

 

This judgement now makes it quite clear to the DCAs what they can call enforcement and the grey area is when they return a reconstituted agreement as in their book they have complied and the account isn't in dispute so they will carry on collection activity.

you can actually request in writing to have CRA's stop processing your data in an automated manner, as ccc etc have no way of processing data manually opting back in at a later date . This may red flag of course to any ccc's doing checks . Vint1954 has a great thread on this . If after proving unenforcability they have no agreement they have no LEGAL right to share info with the cra's and would in deed have breached the data protection act which i believe is a criminal offence . Of course we all know its that simple lol .:razz:
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If after proving unenforcability

 

Be interested in seeing how you do this without litigation haven't seen that thread...do you have a link?

Live Life-Debt Free

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Wow, so now it looks like now reporting to CRA's factual information is not enforcement and therefore can be and will be done by the creditors in cases of unenforceable agreements.

 

I personally found reasoning provided by the judge in this case very compelling.

 

One of big creditors of mine without proper CCA can now and surely will lawfully report default to CRA's and I will not be able to avoid the default on this 'unenforceable' debt.

 

Ironically, for me it means one thing. I have no reason whatsoever to not default on all other much smaller debts whether enforceable or not. I now have guaranteed and unremovable default on my credit record. There is no point whatsoever for me not to default on all other debts (which until now I have planned to repay).

 

I.e. I had a plan to dispute 2 large debts and eventually remove defaults because these debts are unenforceable. Now I will probably default on 5 debts and it will not make any difference for me except that I will have to pay 1£/month for eternity to those who entitled to enforce and than I'll live without further borrowing for 6 year (and I can live with this). This is because I will have one default in any case now, therefore any additional defaults do not give any significant material deterrent.

 

I'd say the banks shot themselves in a foot here (to a degree).

 

To summarize, a militant consumer in financial difficulties could have such hypothetical reasoning based on purely materialistic motivations:

I either:

- pay 10k£ on agreement I know is unenforceable and avoid a default on a credit record and keep up (repay/service) with other 'good' agreements.

or

- I will not pay 10k£ on agreement I know is unenforceable and will draw what I can on all other unsecured lines of credit use it to repay any secured agreements I have and than default. I will than offer proportional payment plan or token payments to all proper creditors and will live to fight another day in 6 years time.

Edited by Readalot
added some stuff

--------------------------------------------------

Yorkshire Bank ~1200£ of charges reclaimed many moons ago, settled out of court

HSBC ~350£ of charges reclaimed many moons ago, settled out of court

HSBC ~4000£ flexiloan CCA request sent May 2009, 'sorry, we do not have your CCA' letter received June 2009, AccountInDispute letter sent.

HSBC ~9000£ CC CCA request sent May 2009, no response, AccountInDispute letter sent.

HSBC - preliminary letter for about 300£ of unfair charges plus interest sent May 2009, LBA sent June 2009, N1 POC and Schedule of charges submitted July 2009

Egg - CCA, SAR, "no more calls" letter, DMP offer sent July 2009. Got a DN from Egg - wont say a word on this one until court papers are received.

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This is an apalling and sinister test case. Have I read it wrongly or does this now make mincemeat of in dispute template letters, in that this has decreed that enforcement only refers to actually going to court. Are we now to see our already battered members being harrassed, pursued, defaulted, terminated, and contantly threatened with court action even when no agreement is produced and the banks/DCA's KNOW they ultimately can't actually enforce it in court?

 

These are exactly the consequences of this judgement.

--------------------------------------------------

Yorkshire Bank ~1200£ of charges reclaimed many moons ago, settled out of court

HSBC ~350£ of charges reclaimed many moons ago, settled out of court

HSBC ~4000£ flexiloan CCA request sent May 2009, 'sorry, we do not have your CCA' letter received June 2009, AccountInDispute letter sent.

HSBC ~9000£ CC CCA request sent May 2009, no response, AccountInDispute letter sent.

HSBC - preliminary letter for about 300£ of unfair charges plus interest sent May 2009, LBA sent June 2009, N1 POC and Schedule of charges submitted July 2009

Egg - CCA, SAR, "no more calls" letter, DMP offer sent July 2009. Got a DN from Egg - wont say a word on this one until court papers are received.

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Wow, so now it looks like now reporting to CRA's factual information is not enforcement and therefore can be and will be done by the creditors in cases of unenforceable agreements.

 

I personally found reasoning provided by the judge in this case very compelling.

 

One of big creditors of mine without proper CCA can now and surely will lawfully report default to CRA's and I will not be able to avoid the default on this 'unenforceable' debt.

 

Ironically, for me it means one thing. I have no reason whatsoever to not default on all other much smaller debts whether enforceable or not. I now have guaranteed and unremovable default on my credit record. There is no point whatsoever for me not to default on all other debts (which until now I have planned to repay).

 

I.e. I had a plan to dispute 2 large debts and eventually remove defaults because these debts are unenforceable. Now I will probably default on 5 debts and it will not make any difference for me except that I will have to pay 1£/month for eternity to those who entitled to enforce and than I'll live without further borrowing for 6 year (and I can live with this). This is because I will have one default in any case now, therefore any additional defaults do not give any significant material deterrent.

 

I'd say the banks shot themselves in a foot here (to a degree).

 

To summarize, a militant consumer in financial difficulties could have such hypothetical reasoning based on purely materialistic motivations:

 

I either:

- pay 10k£ on agreement I know is unenforceable and avoid a default on a credit record and keep up (repay/service) with other 'good' agreements.

or

- I will not pay 10k£ on agreement I know is unenforceable and will draw what I can on all other unsecured lines of credit use it to repay any secured agreements I have and than default. I will than offer proportional payment plan or token payments to all proper creditors and will live to fight another day in 6 years time.

Wasn't the agreement in this case an irideemably unenforcable ie there is a cca but a prescibed term is missing ? Surely if they have no signiture agreeing to allow them to process your data they are in breech of the data protection act a criminal matter ? Plus if they have ended the agreement they have ended their right to process your data under the data protection act unless they can provide a signed condition saying you gave them a lawful right ? also see my post above and visit the scolarly Vint1964 thead on cra's &oc'-credit ref reporting-discussion We lost a battle not the war come on guys lets think out of the box .
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Is section 13.6 of the Banking Code now defunct too? Amex's Sols have told me this morning that they are now able to enforce repayment even without an enforceable credit agreement. Not a very accurate interpretation, but Im sure many people will be taken in by this.

Edited by saddler68
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These are exactly the consequences of this judgement.

 

I still think that they should halt collections activity if there is a reasonable dispute in place; afterall a creditor should be abiding by the OFT debt collection guidelines in conjunction with the new CPUT regs.

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the creditors may think that this is a victory for them- however- those with more than half a dozen brain cells will have realised by now that in fact what they have suceeded in doing is LOSING the reporting aspect as a "Weapon" with which to beat the debtor

 

Once ONE creditor has F***ed up the debtors credit file- there is no reason why the debtor should not then take the view that as his credit rating is well and truly F***d already then threats by another one to do the same thing are no longer relevant

 

In fact it is a postive encouragement for the debtor to say to himself

 

OK if i am going to be F****d for 6 years- lets default on the whole goddam lot of them at the same time and get them all done and dusted

 

Smart move by the creditors/DCA's - i don't think so

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Is section 13.6 of the Banking Code now defunct too? Amex's Sols have told me this morning that they are now able to enforce repayment even without an enforceable credit agreement. Not a very accurate interpretation, but Im sure many people will be taken in by this. forumbox_top_left.gifforumbox_top_tile.gifforumbox_top_right.gifforumbox_left_tile.gifclose.gif The Banking Code Follow this link to read the Banking Code in full.

Ofen ignored by its subscribers, half-heartedly monitored and poorly enforced

forumbox_right_tile.gifforumbox_bottom_left.gifforumbox_bottom_tile.gifforumbox_bottom_right.gif

 

 

Hi Saddler..

As above.

The DCA's and Banks are still answerable to the OFT for their conduct and for the renewal of their credit licences, regardless of this judge's incorrect and ill researched opinion on "enforcement".

I'd point out the following to these chancers as posted earlier:

From OFT Debt Collection Guidelines

 

falsely implying or stating that action can or will be taken when it legally

cannot

 

ignoring and/or disregarding claims that debts have been settled or are

disputed and continuing to make unjustified demands for payment

 

not ceasing collection activity whilst investigating a reasonably queried or

disputed debt.

 

visiting or threatening to visit debtors without prior agreement when the

debt is deadlocked or disputed.

 

CPR 2008

Aggressive Commercial Practices

Section 7 (2 e)

Any threat to take any action which cannot legally be taken.

 

Banking Code 2008

13.6 We may give information to credit reference agencies

about the personal debts you owe us if:

• you have fallen behind with your payments;

• the amount owed is not being disputed; and

• you have not made proposals we are satisfied with

for repaying your debt, following our formal demand

 

Elsa x

PLEASE NOTE... I AM MOST SORRY BUT I HAVE VERY LIMITED AVAILABILITY AT THE MOMENT DUE TO EXTREME PRESSURE OF WORK - IF YOU REQUIRE URGENT HELP ON YOUR THREAD AND ARE GETTING NO RESPONSE PLEASE HIT THE TRIANGLE FOR SITE TEAM ASSISTANCE. ELSA XXX

 

Please check out my BLOG for the quick guide to debt threats - it has all the info & letter template links you need to get started on your journey of TAKING CONTROL. :roll:

 

All opinions are my own based on research. I am not legally qualified, if in doubt please consult a legal expert.

Hope this has helped or made you smile. Keep your chin up, you're among friends now! Elsa xxx

Please click the *star* of any CAG member who has helped you .

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Amex's Sols have told me this morning that they are now able to enforce repayment even without an enforceable credit agreement. Not a very accurate interpretation, but Im sure many people will be taken in by this.

Also, Amex default notices are notoriously defective, consequently the registering of innacurate or false information with CRA's may be a potential breach of the Data Protection Act 1998 and potential damage to credit reputation.

 

 

It appears the Royal Court of Justice case being discussed, did not deal with defective default notices being registered with CRA's, rather it ruled that a default notice can be registered while an account is in dispute which is a different matter.

Please note that the right to reproduce any part of any post I make on this forum is restricted under copyright law and litigation privilege

 

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