Claim Stayed – Due to Unenforceable CCA Test Cases.

[The GodMother]

Hi just caught this thread,

 

Is this a credit card account ?

 

Why do you say the agreement was unlawfuly terminated>

 

Peter

 

 

I think u will find they terminated the agreement 2 days b4 the DN finished.

[angry cat]

Hi DD & Pedross

 

Sorry for not replying sooner to thank you for your joint input. The BP's a bit high so I've been having a rest from it all. So many thanks for your joint input!

 

Done the things you suggested - think I shall be telling the Coooooooooooperative & Fredericksons to do one!

 

Cheers

 

You may find the MALG Good Practice Guidelines of benefit:

 

http://www.moneyadvicetrust.org/images/Mental_Health_Guidelines_2009.pdf

 

The Office of Fair Trading do expect creditors, debt buyers and DCA's to follow same.

 

AC

 

p.s. please do take the time to read the document fully, as it applies to both mental and physical health...

Edited February 9, 2010 by angry cat
p.s.

[brooooooooooce]

Many thanks AC for that information. It is hugely relevant to me, given that my debt problems are largely to do with the fact that I haven't worked since a nervous breakdown - 'burnout' as my consultant psychiatrist described it. I've been struggling a little (well a lot) the last couple of weeks - the OCD in me means that I becoming obsessed with whatever I'm dealing with. My wife barred me from going onto CAG or dealing with any nonsense from creditors until I had calmed down somewhat.

 

I keep getting knockbacks though. Yesterday I rang my mortgage co., HSBC, our 2 year discount comes to and end. I asked to switch on to a new product. Woman say's she'll have to do an onlne valuation of our house. 2 years ago our loan was at 75% LTV today apparently it is at 99%. What a load of crap! Really peeeeeeeeeeeeeeeeeed off!

 

On another note, having read the MALG stuff, I was wondering how it fitted with my experience of Crap1. Just to sum up - I'm getting nowhere with them, incessant phone calls and all that. Then I write to them telling them they are driving me nuts and pointing out I have a long history of mental health problems. They ask for evidence so I send them a 20 odd page report from a consultant psychiatrist that details what a fruit loop I am - within a few days I get a phone call, followed by a letter, confirming acceptance of a 15% full and final. I even remember thinking the couple of people I spoke to were quite 'nice' - which is unusual!

 

Reading the MALG stuff it kind of firms up what I was already thinking - Crap1 changed their tact with me because of the mental health problems, even to the point of using 'nice' people to deal with me. Do you think I'm right? Should I send the psychiatrict report to all my creditors, regardless of whether they have asked for it?

 

Cheers again for your input.

[haggis1984]

Many thanks AC for that information. It is hugely relevant to me, given that my debt problems are largely to do with the fact that I haven't worked since a nervous breakdown - 'burnout' as my consultant psychiatrist described it. I've been struggling a little (well a lot) the last couple of weeks - the OCD in me means that I becoming obsessed with whatever I'm dealing with. My wife barred me from going onto CAG or dealing with any nonsense from creditors until I had calmed down somewhat.

 

I keep getting knockbacks though. Yesterday I rang my mortgage co., HSBC, our 2 year discount comes to and end. I asked to switch on to a new product. Woman say's she'll have to do an onlne valuation of our house. 2 years ago our loan was at 75% LTV today apparently it is at 99%. What a load of crap! Really peeeeeeeeeeeeeeeeeed off!

 

On another note, having read the MALG stuff, I was wondering how it fitted with my experience of Crap1. Just to sum up - I'm getting nowhere with them, incessant phone calls and all that. Then I write to them telling them they are driving me nuts and pointing out I have a long history of mental health problems. They ask for evidence so I send them a 20 odd page report from a consultant psychiatrist that details what a fruit loop I am - within a few days I get a phone call, followed by a letter, confirming acceptance of a 15% full and final. I even remember thinking the couple of people I spoke to were quite 'nice' - which is unusual!

 

Reading the MALG stuff it kind of firms up what I was already thinking - Crap1 changed their tact with me because of the mental health problems, even to the point of using 'nice' people to deal with me. Do you think I'm right? Should I send the psychiatrict report to all my creditors, regardless of whether they have asked for it?

 

Cheers again for your input.

 

Hi,

 

My Community Mental Health Team has an advocacy service - they said they would help me dealing with debt probs. Maybe your CMHT has something similar? You're not alone in your fruit loopiness!

[brooooooooooce]

Hi Haggis

 

Cheers for the info. I am not currently under the care of my community health team - I used to be. I have been through multiple bouts of CBT (both NHS and private), anger management, psychiatrict examinations, 4 different medications - the only thing that truly helps me is the love of my family and the strength they give. My wife is the rock of Gibraltar and without her I probably would have ended it all years back. Winston Churchill described his bouts of depression as his 'black dog' - its something I've learnt to live with but when it comes along it can really mess me up.

 

I've got things a little more into perspective but my head runs wild when my wife is at work and I'm home alone!

 

There are times when I wish I could have my old life back (minus the 80 hour working weeks that caused it all!). And yet at other times I think my 'burnout' was the best thing that ever happened - I really hated my job and the hours I had to work just to make a wage and stay within all the FSA / FOS rules. If I could sort all this debt stuff I think it would be a turning point - closure on my old life, nothing else to frett / get anxious about.

 

I joke about being a fruit cake / fruit loop - but I really wouldn't wish to offend anyone on CAG who suffers from depression or other form of mental illness. I know full well the consequences of untreated mental illness. So my apologies if anyone might take offence - joking and being open about it helps me deal with it.

 

Cheers again.

[cfs_too]

Hi and I hope you are more relaxed after your time out from CAG.

 

I haven't read all of your threads, and I hope you don't mind if I offer a few words....

 

I have ME/CFS which although not registered as a mental illness, I too suffer from major stress issues and also become obsessed in what I'm dealing with, which isn't easy when you have DCA's sending their threat-o-grams! Luckily I have learned to calm down, but it is hard and when you start to read all the excellent threads on here it does become a bit compulsive as one threads leads to another to another etc......

 

My wife barred me from going onto CAG or dealing with any nonsense from creditors until I had calmed down somewhat.

 

I hate to take her side but she's right!! I've been through it too, my b/f got rather fed up of me obsessing about this creditor did this, and this creditor did that....and then do you know what this person on CAG did.....etc etc! I started to spend silly time reading far too many posts for guidance.

 

It is difficult, whether you are unable to cope either mentally or physically, and the creditors must start to accept your illness. I don't know if you have mentioned this in a previous thread, and apologies if you have, but have you mentioned the Disability Discrimination Act to any creditors?

 

I have a few times, and they have changed their tone a bit, i.e. no more calls, they have finally accepted the 'telephone harassment' letter, once I started to quote the DDA. It doesn't stop the letters, (they have calmed down though, not so many major threats) but at least you can open them when you are able to cope with them, i.e. at a time you chose.

Putting yourself back in control of some of the situations, however small can help.

 

Do you think I'm right? Should I send the psychiatrict report to all my creditors, regardless of whether they have asked for it?

 

Personally I wouldn't, do you really want your personal details in the hands of these creditors??? How can you be sure that this document isn't passed around between inter-companies and to DCA's? The data protection act should prevent this, but how would you know if a creditor 'shared' your information?

 

Having done many DPA requests over the past few years, due to my ill health I have been quite surprised what information turns up and where, especially in places it shouldn't be - and that's only the companies who have disclosed the information.

 

Is your GP able to summarise your medical report, in laymens terms for the creditors, at least then you can present the facts, whilst keeping your personal details to yourself? One general letter, available to the creditors of your choice?

 

I hope I haven't been too intrusive, and feel free to ignore anything.

Take it easy.

 

Me_Too:)

[oilyrag]

Hi Broooooooooooooce

 

Sorry to hear of your health problems and glad you are able to communicate again. Regardless of some of the comments put on here by some, this is a community of self help and support. My advice for what its worth is NOT to send any medical information whatsoever to any of these people. They are unethical and totally amoral. Once we had revealed my own heart problems to Barclaycard, that is when they really went for us and at the time we were not in arrears. Maybe a couple of days late making payments at times but nothing more serious. It was deliberate and malicious with a hidden agenda I am sure. And yes I have plumbed the dark depths as well.

 

Now they have lost out as we don't pay anything, they won't go to court. Phone calls are now a sport, I don't even let them speak, I read the riot act and put the phone down. All correspondence is ignored as per legal instructions if or until proceedings are isssued. End of! I fill my time with my hobby and the little "toy" making business we have. Now I need 48 hours in every day to do the things I WANT to do.

 

All the best and hope that this helps a bit, knowing that others are with you.

 

Best regards

oilyrag.

[Peterbard]

I think u will find they terminated the agreement 2 days b4 the DN finished.

 

 

Hi

 

Wouldnt know havnt seen the case in question.

 

An early termination wold not br unlawfu,l althougit may scupper the default notice.

 

Pete

[haggis1984]

Hi

 

Wouldnt know havnt seen the case in question.

 

An early termination wold not br unlawfu,l althougit may scupper the default notice.

 

Pete

 

Could you elaborate on this please peterbard? My understanding was that if they terminate the account prior to the remedy date on the DN the DN was invalidated.

[humbleman]

Early termination will be unlawful, all you need to pay them is the arrears and you are done.

[oilyrag]

I also would be interested to hear what the position is on this. There are other threads on these forums which actually say that once a non compliant default notice has been issued, for example the drivel sent out by Mercers, which is followed by a demand for payment in full of the whole account then that is termination and it is unlawful on the back of the defective DN.

 

I think many will want to see a consistent argument at least. It has also been said that although the process may be started with s78 request, a better defence, when it comes to it, is a defective default followed by termination. Far superior in fact to a non compliant s 78 or IEA.

 

What is the position then guys please?

 

oilyrag.

[haggis1984]

IMHO there is so much confusion around the CCA at the mo (including within the judicary) an invalid default may be a stronger defence. Best to have a read of the Consumer Credit (Enforcement, Default and Termination notices.

Cant remember where I found it before unfortunately. Looked on Baili and opsi but all I can find are the ammednements.

Edited February 11, 2010 by haggis1984
argh edited a million times font problems

[MandM]

IMHO there is so much confusion around the CCA at the mo (including within the judicary) an invalid default may be a stronger defence. Best to have a read of the Consumer Credit (Enforcement, Default and Termination notices.

Cant remember where I found it before unfortunately. Looked on Baili and opsi but all I can find are the ammednements.

 

Try here>>>>> http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=1411&d=1193876108

 

M

[haggis1984]

Try here>>>>> http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=1411&d=1193876108

 

M

 

Thanks M - saved straight to my MBNA folder

[nks22]

Far superior in fact to a non compliant s 78

 

A non-compliant s78 request isn't worth much as there's no penalty if it's remedied, however long it takes. Termination is, as its name suggests, terminal, though.

 

once a non compliant default notice has been issued, for example the drivel sent out by Mercers, which is followed by a demand for payment in full of the whole account then that is termination and it is unlawful on the back of the defective DN.

 

Any demand for full payment implies that the lender has terminated your credit agreement. If the demand was on the back of a faulty DN then the creditor will have lost the right to have that payment enforced by a court.

[Peterbard]

Could you elaborate on this please peterbard? My understanding was that if they terminate the account prior to the remedy date on the DN the DN was invalidated.

 

Hi

 

Yes you are correct the default would have to be re-issued and the precribed period for remedy of the breach re asiggned before court action could coommence. But the termination of the account would not be unlawflul either party can terminate the account at any time

 

Peter

[diddydicky]

Any demand for full payment implies that the lender has terminated your credit agreement. If the demand was on the back of a faulty DN then the creditor will have lost the right to have that payment enforced by a court.

 

Not quite, the demand indicates that the lender has decided to no longer perform his obligations under the agreement (he unlawfully repudiates his obligations)

this is VERY different from him having terminated the agreement because the fact is that he CANNOT unilaterally unlawfully terminate the agreement (anymore than you can)

 

His intended actions (unless he carries them out- in which case he will be in breach of the contract) if ignored will mean that the agreement endures

 

ONLY if you step outside of the CCA and into contract law and ACCEPT (as is your right as the injured party) his unlawful repudiation will you be entitled to cease to continue to perform YOUR obligations under the agreement

 

it is this MUTUAL agreement (started by the other side unlawfully) for neither party to continue to perform that leads to the "effective" termination of the agreement -

 

important to understand the process

[nks22]

Good points, no doubt.

 

I can't find the original post but I know someone (possibly you - apologies if it wasn't) said something along the lines of it being too late to accept unlawful recission after x number of months. Is this so? If nothing significant has happened in between does it matter how long the delay? Could you not argue that as a layman you only became aware of the issue some time later?

[diddydicky]

Good points, no doubt.

 

I can't find the original post but I know someone (possibly you - apologies if it wasn't) said something along the lines of it being too late to accept unlawful recission after x number of months. Is this so? If nothing significant has happened in between does it matter how long the delay? Could you not argue that as a layman you only became aware of the issue some time later?

 

it's never too late!! but the sooner the better

 

dont forget that as a LIP you have an excuse for not knowing the law until you have researched it/been advised

 

what would be difficult is if you continued making payments for several months or longer - but still better late than never

 

you sometimes have to play them at their own game BBB, (Bull**** Baffles Brains) and write in such a way- on some other pretence which gives the impression that you already accepted it long ago- and hope they don't pick up on it

 

many of them are not the sharpest tools in the toolbox!!

[MandM]

what would be difficult is if you continued making payments for several months or longer - but still better late than never

 

you sometimes have to play them at their own game BBB, (Bull**** Baffles Brains) and write in such a way- on some other pretence which gives the impression that you already accepted it long ago- and hope they don't pick up on it

 

many of them are not the sharpest tools in the toolbox!!

 

You could, for instance, write and refer to your previous letter accepting his unlawful repudiation of **date** in which you also pointed out that you would continue to pay the amount of £XX for ?? months towards the arrears, as that is now all that remains due, thanks to their duff DN.

 

You're writing to say that time is now up. We can re-negotiate if you take me to court.

 

If they can't find the letter it's not your problem

 

M

[Peterbard]

Any demand for full payment implies that the lender has terminated your credit agreement. If the demand was on the back of a faulty DN then the creditor will have lost the right to have that payment enforced by a court.

 

 

Not quite, the demand indicates that the lender has decided to no longer perform his obligations under the agreement (he unlawfully repudiates his obligations)

 

this is VERY different from him having terminated the agreement because the fact is that he CANNOT unilaterally unlawfully terminate the agreement (anymore than you can)

 

His intended actions (unless he carries them out- in which case he will be in breach of the contract) if ignored will mean that the agreement endures

 

ONLY if you step outside of the CCA and into contract law and ACCEPT (as is your right as the injured party) his unlawful repudiation will you be entitled to cease to continue to perform YOUR obligations under the agreement

 

it is this MUTUAL agreement (started by the other side unlawfully) for neither party to continue to perform that leads to the "effective" termination of the agreement -

 

important to understand the process

 

 

HI

 

I am finding this a little hard to get my head around, not saying youare wong but i is something i have not considered in any great detail.

 

I was always of the opinion and i must say there is some support for this in the act, that an agreement under the cca can be terminated at any time by either party.

 

Not to say tht the creditor can demand early patment or that indeed the debtor can withold repayment ,but that the vehicle fo the transaction so to speak can be interupted.

 

when you speak of "stepping outsice of the cca" for a commersial credit transaction ,t i am unsure what you mean, i was not aware that there was an outside of the cca in this context, i was under the oppinion that all credit agreements must be contained within the cca.

 

Peter

[angry cat]

IMHO, s87 & 88 together with Regs/subordinate legislation explain the issue quite clearly.

 

Agree, it does take a while to understand!

Edited February 11, 2010 by angry cat
typo

[haggis1984]

So AC and PB - are you guys saying that the CCA overides pre-existing contract law? (Im reading DDs post as saying that we are using contract law when we accpet an unlawful recission, and this has nothing to do with the CCA).

[pedross]

I was always of the opinion and i must say there is some support for this in the act, that an agreement under the cca can be terminated at any time by either party.

 

I think you may be right Peter.

 

However, my understanding is that if the debtor is in breach of his obligations e.g. behind with payments, then to terminate the agreement and gain the benefits of section 87 the creditor must at first issue a default notice which complies with section 88.

 

Termination without complying would none the less be termination and therefore the benefits available under S87 would be lost forever.

 

Pedross

[diddydicky]

I agree that if a properly executed agreement makes provision for either party to terminate on giving notice (s87/8 apart) then of course it is acceptable for either party to do so. If the other party then wishes to plead that they did not understand the term, thought it an unfair term or that the CCA overrides it then it is for them to take the matter to court and seek a ruling.

 

My comments were aimed at a situation where one party (the creditor) seeks to repudiate his obligations unlawfully within a regulated agreement where there is no provision within the CCA for him to be able to do so.

 

clearly, a creditor who steps "outside" the remit of the CCA in taking such an unlawful stance puts himself into the arena of general contract law which is not subservient to the CCA

 

perhaps it can be better explained in the following article