Claim Stayed – Due to Unenforceable CCA Test Cases.

[letitbeme]

I have heard that the Civil Judiciary are sick and tired of wiping the arse of the Banking Industry, so you could have a point, but I don’t think they need to re-write established case law, Just implement it!.

[middenmess]

I have heard that the Civil Judiciary are sick and tired of wiping the arse of the Banking Industry, so you could have a point, but I don’t think they need to re-write established case law, Just implement it!.

 

 

First they need to be fully conversant with all aspects of the 1974 Act etc.

 

If they were, then many more cases would have been dismissed or found against the Banks which in turn would have discouraged the banks from pursuing many,many cases.

 

There will soon be enough cases for a separate court section just to deal with aspects of the 1974 Act before the entire court system gets clogged with claims of unenforceability etc.

[Ruprecht]

No cases of interest showing for tomorrow (30th September 2009) at the Commercial Court in London .

 

 

Court Hearings - Commercial and Admiralty Court

[Tricky Dickie]

Take a look at this,very interesting

 

Reported this morning on BBC

 

Court lets woman off £8,000 loan

By Ian Pollock

Personal finance reporter, BBC News

 

 

The obligation to repay many consumer loans may be undermined

A decision by a county court Judge could mean thousands of borrowers being able to renege on their debts.

Judge Jacqueline Smart at South Shields county court has decided that the MBNA credit card company cannot demand the repayment of a customer's debt.

It tried to force Lynne Thorius to repay the £8,000 she owed on her card.

But the Judge decided there had been an unfair relationship between Ms Thorius and MBNA because of the way she had been sold payment protection insurance.

'Massive ramifications'

Ms Thorius' case was pursued on her behalf by a claims management firm Cartal Client Review, based in Manchester, and the law firm Consumer Credit Litigation Solicitors.

Carl Wright of Cartal Client Review, claimed the court decision was a landmark judgement.

"This will have massive ramifications for consumers up and down the country," he said.

But MBNA downplayed the importance of the court decision.

"The judgement went against MBNA for a number of reasons," a spokeswoman said.

"In principle, because the deputy district judge felt that MBNA had not on this occasion provided the appropriate documents to the customer and as such was not able to rely on the clauses MBNA would ordinarily seek to rely on in these cases," she explained.

"The case is a county court case and each case is decided on its own merits and on the factual circumstances of each case. This does not set any legal precedent," said MBNA.

'Secret commission'

The credit card in question was branded with the logo of Sunderland football club and was sold to Ms Thorius in the club's shop in 2002.

The PPI policy was sold to her at the same time, to pay off her account if she fell ill or was made redundant.

But, critically, she had not been told that MBNA would be receiving regular commission payments from the insurance provider ITT London & Edinburgh, a subsidiary of the Aviva insurance group.

Judge Smart agreed with the argument of Ms Thorius's barrister, Paul Brant, that this "secret" commission meant the credit card deal was unfair and therefore in breach the Consumer Credit Act.

This point could potentially undermine many other agreements where PPI has been sold by the lender alongside a loan.

These include car finance deals, other personal loans and even mortgages.

"This practice is believed to be widespread and formed part of the Competition Commission's decision to prohibit the co-sale of PPI with credit in its report published on 29/1/09," Mr Brant noted.

"This point is likely to affect many thousands of individuals within England and Wales," he added.

Repayments

Judge Smart also agreed that the debt on Ms Thorius's credit card was unenforceable because the card company could not provide a copy of the original loan agreement, which is also required by the Consumer Credit Act.

MBNA's claim for the repayment of the outstanding money on the card was rejected.

And the Judge ordered the company either to repay Ms Thorius's PPI premiums and interest, or the value of the commissions it had received which so far has been undisclosed.

The PPI premiums, which rose each month as the credit card debts increased, amounted to £2,500 over the time the card had been in use.

Controversial

The claims management industry which has emerged in the past few years has been highly controversial.

Many firms advertise in newspapers and on television, encouraging people to come forward to write off their debts.

This year the authorities, such as the Office of Fair Trading (OFT), Ministry of Justice (which regulates claims management firms) and the Solicitors Regulation Authority, have warned firms not to make exaggerated claims about their ability to get debts written off because of apparent technical errors in the lenders' paperwork.

Since April 2007 more than 100 such firms, or those advertising for people to pursue personal injury claims, have been shut down by the OFT.

But the South Shields ruling appears to open up a new and genuine line of attack for claims firms.

"We have been using this argument for some time but lenders have been settling outside the courts to avoid publicity," said Mr Wright.

MBNA applied for leave to appeal, which was rejected, but it may now apply directly to a higher court for permission to appeal.

Only when higher courts have decided the issue will the legal ramifications, and the effects on lender and borrowers, be clear.

 

Very interesting information and well worth looking into.

 

As discussed elsewhere and recommended by the Ministry of Justice everyone should take advice before paying a CMC to take on their case

 

http://[problem].com/showthread.php?t=35395

[Blondie40]

TD

 

You beat me to it. And on my own thread.

 

I saw it at work during my break and nearly spat coffee all over the screen.

 

Hopefully could be a turning point. Let's encourage MBNA to appeal.

 

Have to say this bit is the best:

 

Repayments

Judge Smart also agreed that the debt on Ms Thorius's credit card was unenforceable because the card company could not provide a copy of the original loan agreement, which is also required by the Consumer Credit Act.

MBNA's claim for the repayment of the outstanding money on the card was rejected.

 

B40

[Tricky Dickie]

Have just heard Carl Wright on BBC radio 5 live telling everyone what a great job Cartel did in the Thorius case.

[angry cat]

Liverpool Daily Post.co.uk - News - Liverpool News - Liverpool barrister behind ruling that could affect “thousands” of credit card holders

 

AC

[saddler68]

Liverpool Daily Post.co.uk - News - Liverpool News - Liverpool barrister behind ruling that could affect “thousands” of credit card holders

 

AC

 

'Unfair' and 'unenforceable'. Thats a major result. I hope the PPI refund/damages are sufficient to cover CCR's 30% fee :grin:

[angry cat]

'Unfair' and 'unenforceable'. Thats a major result. I hope the PPI refund/damages are sufficient to cover CCR's 30% fee :grin:

 

I doubt it!

 

Nice to see MBNA lose though, wasn't it?

 

I note, CCR's application for a CCL, is still pending...red tape, I guess.

 

I posted up the above 'Liverpool Daily Post' link, because it gave a slightly different slant on the story.

 

:

The judgment is thought to be the first to consider the new “unfair relationships” test, which came into effect between April, 2007, and April, 2008."

 

AC

[angry cat]

Trinity Chambers - Barristers - Barristers in Newcastle upon Tyne and Middlesbrough

 

Deputy District Judges

A deputy district judge is appointed to sit in the county court or in a High Court District Registry to case manage and try civil, family, costs, enforcement and insolvency cases. They try small claims and fast track cases, family ancillary relief hearings, hear interim applications and make procedural directions preparing cases for trial. Their jurisdiction is broadly similar to that of a full time district judge although they have limited authority to deal with family cases involving children.

 

It is a fee-paid post open to any fully qualified and currently practising solicitor or barrister with at least 7 years’ experience. There is no minimum age limit for applying although a deputy must retire at 65.

 

AC

Edited October 2, 2009 by angry cat
addition

[kel123]

I want my case to be heard by jacky smart - atleast you know it will be based around legislation

 

Good link angry cat

[angry cat]

You may find the following of interest:

 

Unfair relationships under

The Consumer Credit Act 2006

What will the new regime mean for lenders?

 

One of the most controversial elements of the latest Consumer Credit Act, is the new concept of an ‘unfair credit transaction’. This will come into force on 6 April 2007 and empower consumers to challenge a wide range of contract terms and lender practices as unfair. It is designed to replace the existing ‘extortionate credit’ test under the Consumer Credit Act 1974 (the Act), which has been criticised as too narrow.

 

Also from 6 April 2007, the Financial Ombudsman Service (FOS) jurisdiction is extended to encompass all consumer credit lending. There is a great deal of uncertainty as to how the new law will be implemented and in particular, whether we can expect to see more agreements being found to be unenforceable.

 

The need for change

Under the 1974 Act, a credit bargain is extortionate if it requires the borrower to make payments which are ‘grossly exorbitant ’ or otherwise ‘grossly contravenes ordinary principles of fair dealing’. The court may re-open an agreement found to be extortionate so as to do justice between the parties.

 

The extortionate credit test has been widely criticised. According to the DTI, since the inception of the Act ‘only about 30 extortionate credit cases are known to have reached the courts and, of those, only ten were proven’ (‘Fair Clear and Competitive – the consumer credit market in the 21st century’ DTI White Paper December 2003).

 

The White Paper, which led to the changes under the 2006 Act, proposed to redress what it saw as the key failings of the test by;

 

• allowing consumers to challenge lender behaviour after an agreement is made

• shifting the focus from cost to take in other factors, such as the level of security required, default charges and lack of transparent information

• making it easier faster and cheaper to challenge an agreement with a new Alternative Dispute Resolution (via the Financial Ombudsman Service (FOS).

 

The new unfairness test

The Consumer Credit Act 2006 aims to ‘enhance consumer rights and redress by empowering consumers to challenge unfair lending and through more effective options for resolving disputes.’ The new, more flexible, framework under clause 19 provides that an agreement may be found to be ‘unfair’ because of;

 

• its terms, or the terms of any related agreement (i.e any previous agreement with the lender consolidated by the new agreement and any linked transaction, such as payment protection insurance

• the way on which the creditor has exercised or enforced his rights under the agreement or any related agreement

• anything else done, or not done, by or on behalf of the creditor (before or after the agreement, or any related agreement, is made)

 

Some commentators have contrasted the systems on the basis that the extortionate test was about cost and the new test takes in all aspects of the relationship. The reality is more complex. Although charges are central to the notion of an extortionate bargain they have never been a prerequisite to a successful claim. Under the old test an agreement could be struck down if it ‘grossly contravened the principles of fair dealing’ even if the borrower’s financial obligations were not ‘grossly exorbitant’. Relevant factors included the age, health, capacity and business experience of the debtor, whether they were under financial pressure, the creditor’s risk, relevant to the value of any security and any other relevant considerations.

 

The key difference is that when deciding if an agreement was extortionate, these factors were only taken into account at the time the agreement was made. The new test is much broader. The court can have regard to all matters it considers relevant any stage during the relationship, i.e. when the loan is sold, when it is entered into, when it is in force and after it has ended.

 

Remedies

If the court finds that the relationship between borrower and lender is unfair, it has a wide range of remedies including;

 

• requiring the creditor to repay any sum paid by the debtor

• ordering the creditor to act or cease to act in a particular way in connection with the agreement

• reducing the amount payable under the agreement

• directing the return of any security under the agreement

• altering any of the terms of the agreement.

 

 

Key Concerns

There are a number of areas of concern about the new provisions:

 

Wide scope

This is an extremely wide provision – any agreement providing credit of any amount is captured. Regulated mortgage contracts are excluded under section 19(5), however, this only covers FSA regulated mortgage contracts. Those entered into before 31 October 2004 will come under the new test.

 

The entire relationship is subject to the unfairness rules; i.e. all dealings before, during and after the contract is made. There is no limit as to time, either. Expired agreements may be subject to a claim. Section 19(4) expressly provides that ‘a determination may be made in relation to a relationship notwithstanding that the relationship may have ended’

 

Actions under the unfairness provision may be brought by consumers individually and by the OFT exercising its powers under Part 8 of the Enterprise Act 2002. This enables the OFT to take enforcement action against lenders where unfair relationships affect consumers generally. Examples given in the House of Lords include where a lender uses standard terms or operates in a common manner in respect of borrowers generally so as to make each relationship unfair. OFT guidance will provide further information on how these powers will be used.

 

Uncertainty

The lack of definition or guidance as to what will constitute an unfair relationship is undesirable for consumers and lenders. All the indications, from the White Paper to more recent DTI and government publications, as well as Parliamentary comment, suggest that the courts and the FOS are to be encouraged to take the widest possible view of the term ‘unfair relationship.’

 

The Government rejected attempts to amend the Bill to require regulations to be made indicating the circumstances in which the relationship between the creditor and debtor may be regarded unfair. They have argued that this would undermine the flexibility of the provisions. They contend that to give undue emphasis to some things by spelling them out would necessarily limit the range of issues that the court may consider and risk creating a ‘box-ticking’ mentality amongst lenders which would shift emphasis from the substance to the form of the lender/borrower relationship.

 

For lenders, it is a question of trying to piece together available information to try and anticipate how the courts will intrpret the provision. Fairness clearly goes beyond the transparency of the agreement. If not, compliance with the Consumer Credit (Agreements) Regulations 2004 would be sufficient to make any agreement fair.

 

The report of the Joint Committee on Human Rights (24 October 2005) offered some views on where lenders should look for guidance:

 

‘We consider there to be suitable guidance available to the meaning of ‘unfair’ in the case-law interpreting the same term in other, closely analagous statutory contexts, in particular the Unfair Terms in Consumer Contracts Regulations 1999. The House of Lords in a recent decision (The Director General of Fair Trading v First National Bank [2001] UKHL 52) gave extensive consideration to the meaning of ‘unfair’ in those Regulations in the specific context of a credit agreement regulated by the Consumer Credit Act 1974.’

 

Under the 1999 Regulations (regulation 4 and schedule 2) a term is unfair if it;

 

• causes a significant imbalance in the parties' rights and obligations

• to the detriment of the consumer and

• is contrary to good faith.

 

Examples include;

 

• forcing a consumer in breach to pay disproportionately high compensation

• irrevocably binding a consumer on terms with which he had no opportunity to become familiar before the conclusion of the contract

• allowing the seller/supplier to alter unilaterally, without valid reason, any characteristics of the product or service provided.

 

The House of Lords expanded upon these principles in the First National case, suggesting that fairness required;

 

• no significant imbalance between the parties. This may arise where the supplier is granted a beneficial option or discretion or power, or a disadvantageous burden, risk or duty is imposed upon the consumer

• fair and open dealings

• full, clear and legible terms with no concealed pitfalls or traps

• appropriate prominence for terms which might disadvantage the consumer

• not taking advantage, deliberately or unconsciously, of the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter, weak bargaining position or any other relevant factor.

 

These illustrations are a good starting point, but policy makers comments suggest that the interpretation of unfairness may go much further. Taken to its most extreme, the new regime may impose a requirement on lenders to undertake and verify fact finds about potential borrowers. Not only about their financial circumstances, but about their personal circumstances, their health, and medical history.

 

Lenders can anticipate a considerable period of uncertainty until some decisions on what constitutes unfairness start to filter through. A piecemeal and unsatisfactory solution. Of even greater concern is that fact that the standard will not be established by the courts alone – FOS, a rather different animal, and, most importantly, free to consumers, is likely to be their first port of call, and therefore to set precedents.

 

The Financial Services Ombudsman

One of the most significant changes for lenders is that all customers of consumer credit licence holder will have access, free of charge, to an Alternative Dispute Mechanism in the form of the Financial Services Ombudsman (FOS). FOS will have jurisdiction over any act or omission by a consumer credit licensee in the course of a licensed business.

 

To date, only customers of FSA-regulated lenders have been able to go to FOS, and there have been relatively few consumer credit cases. However, this may change when consumers are able to take claims of unfair relationships to FOS under the new regime. While only a court may make an order under the new section 140B (the powers of the court in relation to unfair relationships) FOS has significant powers of redress. Particularly as it is not bound by legal precedent, as confirmed in the recent case of IFG Financial Services Limited v Financial Ombudsman Services Ltd [2005]. Here, the High Court held that the relevant law was only one of a number of factors which FOS is required to consider in reaching a decision and that FOS may legitimately ‘depart from the result mandated by the law if he considered that another result provided the result that was fair and reasonable in the circumstances.’

 

Furthermore, FOS’s decision is final. There is no right of appeal for the regulated entity, only the option of judicial review to challenge the decision-making process, rather than the decision itself.

 

Although FOS is a more informal body than the courts, in practice it wields enormous power. Financial services providers who refuse to comply with decisions against them face court enforcement action and face disciplinary proceedings by their regulator.

 

Retrospectivity

The Act will apply to:

• credit agreements entered into after the Act becomes law

• credit agreements in existence when the Act becomes law which are ongoing at the end of the transitional period (one year after the commencement date). However, for agreements in this category, the Court will be limited to granting relief in relation to:

o payments demanded or sums charged after the Act becomes law

o conduct on the part of the lender that makes any repayment of the debt, interest, fees or charges unreasonably high after the Act becomes law; or

o any other obligation on the borrower that is unfair under the new test and has to be complied with after the Act becomes law.

 

The Court may set aside credit agreements where there has been unfairness prior to the Act becoming law, but only if the unfairness manifests after the Act becomes law; and with effect from the date on which the Act becomes law. The financial exposure of lenders is limited by only permitting the Court to give relief in respect of unfairness or excessive costs that occurs after the Act becomes law.

 

Nevertheless, lenders who have advanced medium-long term loans should be reviewing all those which are likely to extend beyond the transitional period to double check they do not include terms which are likely to fall foul of the widened unfairness test.

 

The partial retrospectivity has triggered another debate, concerning its impact on the securitization market.

 

Many personal loans, mortgages and credit cards, entered into before lenders became aware of the new requirements, have been securitised under arrangements, which could not have contemplated that they would become subject to the new unfair relationship provisions.

 

In the House of Lords, it was argued that the UK securitisation market (which has has brought in some £235 million of new funds to UK lending markets) relies on the underlying loans having stable and consistent terms and conditions and a pre-determined risk profile. Case law which defines unfairness too broadly risks triggering a buy-back scramble under securitised deals. This could destabalise the credit market, increasing capital costs for lenders which would be passed on to borrowers as higher charges.

 

This has cut no ice with the Government. It has reponded that it would be unreasonable to exclude long term agreements – of up to 20 years plus – simply because they were concluded prior to the commencement date. On the securitisation issue it was opined that no funding arrangements should be based, even in part, on the inability of consumers effectively to seek redress for behaviour by lenders that cause them harm.

 

The burden of proof

This rests on the creditor. An amendment to place the burden of proof on the debtor if it is proven that the terms of the agreement were in plain, intelligible language was rejected on the grounds that the proposed new Section 140B(10) provides that the debtor must allege that an unfair relationship exists before the creditor must show that it is not.

 

The government felt that lenders are better placed to show that their conduct is not unfair and that consumers will find it difficult to access relevant information.

 

In practical terms, this obligation imposes a massive obligation on creditors to keep accurate records. What is more, records must be kept for a significant period, given the possibility of claims after the agreement has expired.

 

 

Unfairness and Irresponsible Lending

Throughout the legislative process there have been calls from consumer groups and politicians for irresponsible lending to be linked directly to unfairness, so lending irresponsibly would automatically render an agreement unfair. This was resisted, along with attempts to seek guidance generally, in the interests of retaining maximum flexibility.

However, on the third reading of the Bill before the House of Lords on 21 March 2006, an obligation to lend responsibly crept in under a slightly different guise. Rather than introducing a direct duty on lenders, an amendment was passed to ensure that the OFT can take into account include practices in the carrying on of a consumer credit business that appear to the OFT to involve irresponsible lending in determining fitness to hold a licence under the Act:

Lord Borrie spelt it out in debate thus; ‘Lending to those who are already overcommitted with debt is irresponsible. I trust that this new provision will incentivise lenders and potential lenders to take a good deal of care in checking out the borrower's means to repay and the extent to which repayment may be inhibited by the obligations that the borrower has to other lenders’.

Aside from issues of OFT accountability, in particular the concern that the OFT will define its own powers and then enforce them without consultation, this amendment is likely to impact on fairness. Overlap between the two concepts is anticipated. A finding that a lender has acted irresponsibly is likely to trigger allegations of unfairness and vice versa.

 

Summary

 

Lenders cannot afford to be complacent about the new regime. It is likely that more borrowers will be encouraged to try their hand at alleging unfairness, because it can be used as a sword as well as a shield; a borrower will not have to wait until they are facing enforcement proceedings to raise the issue. They don’t even have to be in arrears. Depending on the approach taken by FOS and the courts in the early days, lender could face a wave of speculative claims. As endowment providers have already discovered, in the absence of contemporaneous records to evidence exchanges with customers, it is more difficult to dispute the customer’s version of events. All dealings, including meetings, telephone calls and emails, need to be documented to enable the creditor to evidence what was said/done if a customer alleges unfairness.

 

In addition, it is possible that lenders will need to be able demonstrate that they took steps to ascertain that the borrower had the means to repay the loan, not only in terms of income but all outgoings, including other credit commitments, or risk having contracts overturned. Depending on how paternalistic the courts and FOS are prepared to be, we may be just a short time away from compulsory detailed factfinds and suitability certification for every loan."

[Reader]

Hi all.

 

I know I probably seem a little slow - still learning:) (so bear with me) but I presumed that there would be a few test cases that would determine what would be an enforceable agreement. This would in turn clear up the courts and if there is real justice (what with the law already in place) get the debt collectors off our backs and make the world a wonderful place.

 

Now it seems that this will not be the case.

 

Can anyone explain in simple terms what is happening please?

 

Totally disillusioned ..... Reader

[letitbeme]

One of the solicitors involved with the cases up for a hearing in Manchester on the 8th Oct informed me that the case’s that started in the London Mercantile Court went ahead .

Edited October 10, 2009 by letitbeme

[cymruambyth]

Reader I'm not sure, but I think the reason that cases are settled 'just before a court case' is so that there aren't any unfavourable precedents that will open the floodgates to lots of claims. Therefore the lenders/DCAs have been careful to avoid any test cases.

[pedross]

Good post AC

 

Your efforts in posting this are admirable and it brings a whole new discussion area to the forum.

 

Pedross

[Ruprecht]

One of the London judgments is now online.

 

It dealt with if an unenforceable agreement can be reported to CRAs.

 

The judge decided they can continue to report it and it didn't amount to enforcement.

 

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

 

I wonder what the case would be if they issued a defective default notice though. The account hasn't really defaulted then has it, so can they say it has?

Edited October 6, 2009 by Ruprecht
spelling...

[pedross]

Well I have had a quick skim through and it appears to be a very weak case to use as a test case.

 

For a start the agreement was enforceable and the only real issue was the fact that RBS had not completely complied with the S77 request preventing enforcement but as soon as they sent the final document they would have been in compliance.

 

I really do not see the benefit in them pursuing this case. Have I read it wrong or does everyone work for the banks.

 

Pedross

[saddler68]

Agree with you there Pedross. The banks will get some good publicity from this though, although IMO it doesnt have a much of an influnece on what we are trying to achieve. All a bit peripheral.

[Ruprecht]

I suppose people should be grateful that they reaffirmed the s127(3) stuff.

 

Let them waste their time and money singing for a payment on an unenforceable agreement. :-P

[Tricky Dickie]

Well I have had a quick skim through and it appears to be a very weak case to use as a test case.

 

For a start the agreement was enforceable and the only real issue was the fact that RBS had not completely complied with the S77 request preventing enforcement but as soon as they sent the final document they would have been in compliance.

 

I really do not see the benefit in them pursuing this case. Have I read it wrong or does everyone work for the banks.

 

Pedross

 

As to it being a weak case it depends who wanted it to be a test case.

Also nowhere in the judgement does it say the agreement was enforceable it says the lenders asserted they have a signed agreement but they have not got round to providing a copy yet and the judge seems to have accepted that .

If I was the borrower I would not accept that

[pedross]

As to it being a weak case it depends who wanted it to be a test case.

Also nowhere in the judgement does it say the agreement was enforceable it says the lenders asserted they have a signed agreement but they have not got round to providing a copy yet and the judge seems to have accepted that .

If I was the borrower I would not accept that

 

I think it was generally accepted that it was TD

 

By 11 May 2009, the bank had located a copy of the agreement and wrote to MJP enclosing it and stating that recovery action would now continue.

Mr Moran for the claimant accepted in opening that in some respects the present case was not as appropriate a test case as others might have been, for example because it is a case where, on any view (and as the claimant accepts) the agreement was valid and enforceable until 11 March 2009 (the date when the 12 day period for compliance with a demand under section 77(1) expired). Furthermore, by virtue of section 77(4) the agreement will be valid and enforceable again once the bank has provided the claimant with a signed statement of account

[Tricky Dickie]

I think it was generally accepted that it was TD

 

By 11 May 2009, the bank had located a copy of the agreement and wrote to MJP enclosing it and stating that recovery action would now continue.

Mr Moran for the claimant accepted in opening that in some respects the present case was not as appropriate a test case as others might have been, for example because it is a case where, on any view (and as the claimant accepts) the agreement was valid and enforceable until 11 March 2009 (the date when the 12 day period for compliance with a demand under section 77(1) expired). Furthermore, by virtue of section 77(4) the agreement will be valid and enforceable again once the bank has provided the claimant with a signed statement of account

 

 

If I was the borrower I would not accept that.

 

the last sentence clearly states that further documents which have not yet been provided will be required to make the agreement enforceable which is the same position which the borrower started at before he started proceedings but because the lender says 'no problem I have the documents' and the judge says 'there you are then no need to produce them we accept that ' everyone also accepts it.

 

Furthermore, by virtue of section 77(4) the agreement will be valid and enforceable again once the bank has provided the claimant with a signed statement of account

 

Paragraphs 13 and 14 also clearly state that further documnetation will be required from the lender to render the agreement enforceable.

Again if I was that borrower I would want to see that documentation not just accept assurances from the lender that they had it.

 

13. Correspondence ensued in which MJP threatened proceedings for a declaration of unenforceability by the court if a copy of the agreement were not produced within 28 days and for an injunction if the claimant's credit rating were affected. By 11 May 2009, the bank had located a copy of the agreement and wrote to MJP enclosing it and stating that recovery action would now continue. Through inadvertence, the bank overlooked that it had not provided a signed statement of account as required by section 77(1).
     
    
14. Although collection activity had recommenced, on 13 May 2009 the bank ascertained that the claimant had issued these proceedings and accordingly, collection activity ceased again. That has remained the position since, apart from one letter dated 15 May 2009 sent by Capquest by mistake. Although the bank could easily provide a signed statement of account so as to render the agreement enforceable once again under section 77(4), because the default would have been rectified, it has not done so, quite properly (as the claimant accepts) so as to ensure that there remains a lis between the parties enabling the court to determine the issues which have arisen.
    

By the way what is this lis which allows the lender not to provide the signed statement of account and when the judge refers to 'a signed statement of account does he mean the signed agreement and if not then what is it and how does it relate to a section 77 request?

[boiled]

s77........

 

77.

Duty to give information to debtor under fixed-sum credit agreement.

— (1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F145 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)

the total sum paid under the agreement by the debtor;

 

(b)

the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

 

©

the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

[pedross]

By the way what is this lis which allows the lender not to provide the signed statement of account and when the judge refers to 'a signed statement of account does he mean the signed agreement and if not then what is it and how does it relate to a section 77 request?

 

 

The reason the lender did not provide it was so that they had not fully complied with the s77 request and therefore the case could continue. If they had provided the signed statement of account they would have fully complied. It appears that both sides wanted the hearing to take place as a test case.

 

The agreement had already been provided and seems to be enforceable.

 

The signed statement has been explained by 'boiled'

 

Pedross