No agreement - can I get default removed?

[Docman]

Gary,

 

I beg to differ about liability in Dimond v Lovell. In his judgment. Lrod Hoffman said

 

"Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law:"

 

To my mind, if the House of Lords has said it was Parliament's intention that a debtor should not have to pay if there is no enforcalble agreement, then there can be no liability and the ICO cannot interfer, especially when their Lordships judgment specifically the courts can't.

[GaryH]

Gary,

 

I beg to differ about liability in Dimond v Lovell.

 

To my mind, if the House of Lords has said it was Parliament's intention that a debtor should not have to pay if there is no enforcalble agreement, then there can be no liability and the ICO cannot interfer, especially when their Lordships judgment specifically the courts can't.

 

Docman,

 

I'm not sure why you beg to differ. That is precisely the point I was making re Dimond: unenforceable agreement = no unjust enrichment and (implicitly at least) no debt.

 

Having said that the point wasn't directly in issue. The point we are talking about is whether or not, just because the debter doesn't have to pay, that that means that the debt never existed in the first place or does not exist now.

 

I think, FWIW, that enforceabilty and existance are distinct. If the debt (or liability) doesn't exist as a result of it being unenforeceable then the logical conclusion to that is that all payments made by the debtor were paid under a mistake and could be claimed back in restitution from the creditor. I'm sorry, but I find it very hard to envisage that that was Parliaments intention either. Even less so than the opposite proposition rejected in Dimond in fact.

 

In my view, Parliament intended a debt under an improperly exicuted agreement to be precluded from enforcement by a court. No more, no less.

 

Moreover, in the Wilson case it was held that an improperly executed regulated agreement still gives rise to contractual obligations - the effect of the Act is simply to prevent the lender enforcing his rights.

 

And the distinction was clear again in Burdis v Livsey:

 

"Even though the contractual obligations of the claimant to pay Helphire for hire and repairs subsist if the credit agreements are unenforceable Helphire have no enforceable right to recover these amounts"

 

So if the contractual obligations subsist, as the authorities state they do, then I'm afraid that the creditors are not acting outside the law by recording the fact, and, in this respect at least, the ICO are correct.

[GaryH]

Anyone seen this?

 

McGuffick v The Royal Bank of Scotland Plc [2009] EWHC 2386 (Comm) (06 October 2009)

 

Although it's important to note that it deals only with an agreement which is potentially or tempararily unenforceable under s.77, and does not deal with a scenario where an agreement is irredeamably unenforceable under s.127(3) (or is otherwise improperly executed), this judgment is entirely consistant with the principles referred to above, and leads ever more strongly to the conclusion that a lender is within their rights to mark a credit file where the agreement is unenforceable.

 

Having said that, it may well still worth trying to get a default removed initially by badgering the creditor. I definately wouldn't risk litigating on the point though, personally.

Edited October 21, 2009 by GaryH

[Pinky69]

I am in the process of taking 2 banks to court on the double issue of no permission given on the application forms to pass my personal data to credit reference agencies and rescission by terminating the accounts without lawful DN's - one with no DN at all - which means at the point of rescission the clauses in the alleged agreements they assumed they had to process my personal data were also rescinded.

[cashins]

Wondered what effect that judgement may have on your efforts - higher courts would appear to agree with you.

 

David

[A+]

Hi, I was a regular here but haven't been on for a while due to work commitments etc

 

I found a page on CAB website today - which made me quite miserable. Basically says that without a signed agreement you are still stumped with a debt nobody can prove exists - i find it disgusting but wondered what other people think?

 

is this to be believed?!

 

http://www.adviceguide.org.uk/index/whats_new_nov10_unenforceable_debts.htm