Claim Stayed – Due to Unenforceable CCA Test Cases.

[PaulB_Telford]

I am confident too, I feel the same way I did before the bank charges / OFT judgement:grin:.

[stapeley]

OFT giving the MHC a draft guidance !

 

Taken from their own website - " our role , as an informed dispute resolution service , is to decide cases on the basis of what is fair and reasonable . It is not part of our role to provide opinions on legal matters "

 

Maybe they should read there own website !

Edited December 8, 2009 by stapeley

[saddler68]

a) Is a variation agreement enough as a response to a S.78.

b) Does a breach of Section 78 give rise to an Unfair Relationship?

c) If there is a breach of S.78 could a declaration of unenforceability be pursued?

d) Does the prescribed terms be in the same sheet of paper as the signature?

 

 

Had this on an e-mail from my CMC/solicitor.

 

 

d must be a worry: I thought Wilson and Hurstanger had already cleared this issue?

[kel123]

a) Is a variation agreement enough as a response to a S.78.

b) Does a breach of Section 78 give rise to an Unfair Relationship?

c) If there is a breach of S.78 could a declaration of unenforceability be pursued?

d) Does the prescribed terms be in the same sheet of paper as the signature?

 

 

Had this on an e-mail from my CMC/solicitor.

 

 

d must be a worry: I thought Wilson and Hurstanger had already cleared this issue?

 

Please don't take offence to this but...... I am assuming that you missed out the explanation as to why these questions where in the email, because these questions are basic? and appear on the surface to be a search by a DCA

[saddler68]

Sorry, the e-mail expalined that these issues were being examined in the Manchester Mercantile Court last week

[kel123]

SO! if these are correct then it's the secondry issues that are going to be the most important AGAIN!

[saddler68]

SO! if these are correct then it's the secondry issues that are going to be the most important AGAIN!

Not with your drift their Kel. The single doc issue is hardly secondary IMO.

[kel123]

I am not saying the single doc is unimportant but there is already LJ Tuckey (Wil v Hust) but it is what comes with it? The mcguffic ruling was not as important as the enforcing issue?

[stapeley]

 

An exciting headline

 

 

Sorry a bit late out of the starting stalls , just read the above . NOW EVERYTHING IS AS CLEAR AS MUD !!!!

 

May be as I was not educated at Cambridge or Oxford the meaning of words in my world are different than the legal profession. It is doing my head in ! I suppose the legal team for the banks love all this , plenty of work for them . But why let the facts get in the way of common sense .

Edited December 8, 2009 by stapeley

[letitbeme]

Businessman who had credit card debts made unenforceable wades into the consumer credit debate.

Edited December 10, 2009 by cerberusalert
link removed

[angry cat]

:

 

“You’ve got to experience it to realise how much pressure they put you under. [End Quote]

[the_shadow]

:

 

“You’ve got to experience it to realise how much pressure they put you under. [End Quote]

 

Yep too true!

 

 

S.

[johnerog]

:

 

“You’ve got to experience it to realise how much pressure they put you under. [End Quote]

 

That's everybody on this site then!

 

But it's funny how the pressure ease's when you have support.

[tinkerbell20]

Liverpool Daily Post.co.uk - News - Liverpool News - LDP Legal: Businessman who had credit card debts made unenforceable wades into the consumer credit debate

[ruinedbynatwest]

“This is not about people trying to evade paying money that is owed, it is about making sure lenders, large, sophisticated financial institutions organisations, comply with legislation laid down by Parliament for the protection of the consumer."

 

This is so very true. We at www.ruinedbynatwest.com are eventually pleased, after 20 years fighting in the wilderness, that more and more people are waking up to the reality that the CCA recognised that dodgy credit traders don't like documenting terms, because they can rely on the common law doctrine of caveat emptor (buyer beware) IF a single consumer enters a dispute over those verbally agreed terms. Parliament rightly presumes that the trader is mischievous and the onus is then on the trader to satisfy the court that he acted in good faith.

 

Natwest found it easy, peasy, to successfully portray us in court as the lowest of the low whereas the truth is the bank defied Parliament when it refused to document the terms of our regulated refinancing agreements that replaced 3 existing regulated agreements. Mr Jackson was, however, very dilligent when he perfected the charges we readily gave our friend against our home. Regretably, he saw fit at one stage to issue a cheque on my business account to redeem our joint £24k building society mortgage and the Yorkshire B.S. sent the deeds to our home straight to Mr Jackson. We knew nothing whatever of it.

 

Caveat Emptor indeed.

 

John Story

First defendant Natwest V Story & Pallister (CA 7 May 1999)

Edited December 11, 2009 by ruinedbynatwest
typos

[Bigdebtor]

John

 

Your experience was truly horrendous and I hope justice will eventually prevail!

 

I think I am heading into a similar business situation where the bank claim my (now unaffordable) business debt is secured against my home - but the standard security says Mr AND Mrs Bidgebtor so I think only JOINT debts (e.g. our joint overdraft) are secured. The Bank says "no!" but seems to have lost the loan agreement and facility letter. Given this is a business debt do you think this is unenforceable and unsecured? BD

[RoadToRecovery]

The banks don't loan us the money, they simply create it from nowhere.

 

If the rulers of this and most other countries arund the world (the banks) are now allowed to change laws retrospectively. Any person still believing there is such a thing as democracy is crazy.

[Peterbard]

HI

I understand that one of the issues that will be decided will be to determine when the unenforceablity of the agreement under section 77 starts ie, is it when the default is commited thus stopping the dca/creditor acting to recover,or is it actually when the court starts proceedings so enabling the creditor to do what he likes before this.

 

THis question was of course raised in one of the ranken cases where the judge decided it was the later that was the case, however this decision has been critisised in several knowledgeble and influencial quarters and will be of great significance in my opinion to our interests.

 

Cheers

Peter

[johnerog]

John

 

Your experience was truly horrendous and I hope justice will eventually prevail!

 

I think I am heading into a similar business situation where the bank claim my (now unaffordable) business debt is secured against my home - but the standard security says Mr AND Mrs Bidgebtor so I think only JOINT debts (e.g. our joint overdraft) are secured. The Bank says "no!" but seems to have lost the loan agreement and facility letter. Given this is a business debt do you think this is unenforceable and unsecured? BD

BD.

Banks can and will claim what they like but do they have signed documentation. Don't forget that if they go to court they have to produce original, signed documents. DCA's may duck and dive but banks will be much more careful in court.

John

[Bigdebtor]

John

 

I understand that is true under Consumer Credit Act - but what about business debts or commercial loans? Does it apply to them (loan is around £80k - was up at £107k at one point) and if so does it make any difference whether the loan is to a sole trader or limited company (but with owner's personal guarantee)? The bank is currently saying it can't find the original documentation but they can prove the debt exists.

[johnerog]

John

 

I understand that is true under Consumer Credit Act - but what about business debts or commercial loans? Does it apply to them (loan is around £80k - was up at £107k at one point) and if so does it make any difference whether the loan is to a sole trader or limited company (but with owner's personal guarantee)? The bank is currently saying it can't find the original documentation but they can prove the debt exists.

 

BD I am no lawyer but, If this is a commercial debt or not they will at least have to prove they have a legal charge on your house. They will also have to provide you with any documentation they intend to rely on in court. If you are a Limited Company I would have expected them to ask for personal guarantees. When you say it was £107,000 at one time has it varied?

[ruinedbynatwest]

John

 

Your experience was truly horrendous and I hope justice will eventually prevail!

 

I think I am heading into a similar business situation where the bank claim my (now unaffordable) business debt is secured against my home - but the standard security says Mr AND Mrs Bidgebtor so I think only JOINT debts (e.g. our joint overdraft) are secured. The Bank says "no!" but seems to have lost the loan agreement and facility letter. Given this is a business debt do you think this is unenforceable and unsecured? BD

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

Hi Bigdebtor !

 

Story here. The CCA will apply IF your debt started within the limit specified by Section 8 at the time you started the borrowing. This is an important point that I am arguing as to why the Court must reopen Story (with the support of Mr Bennion, the 1974 CCA draftsman) because the CCA intends to prevent the heartache etc that accompanies unsustainable burdensome debt where eg (as in our case) the bank manager saw the equity in our house and was careful to document the securities that we readily gave him.

 

However and to the point, he refused, smiling, to document the terms of the borrowing/lending agreements - ie why we actually borrowwed the money [or contractual purpose in common law terms] because in reality it was his business plan - he was to lend up to £500,000 IF I gave up my carpentry and joinery business to become a property developer. He was impressed with my carpentry skills and he stated that he wanted to help me.

 

Mary Pallister asked him to document his 'magnanimous' promises. She wasn't impressed with him at all - whereas I was buttered up like a crumpet.

 

Are you saying the business debt "started" at £80k ? Or did it start at a lower fugure ie within the limit that qualifies for the protection under Section 8 - this figure went up over the years, from £2k in 1977, through £5k, £15k, £25k, and was abandoned with the passing of the 2006 CCA.

So, all borrowings are now regulated, in common law terms, to regulate the lender/borrower relationship to ensure that the "informal and friendly"

relationship is not abused by the lender (as it was in our case where Mr Jackson redeemed our B.S. mortgage without our knowledge).

 

So, you may well find that your relationship is regulated, even where the borrowings may migrate to a different lender - abuse can occur anywhere, you see ?

 

So, over to you - at what level did the debt start ?

 

Good luck with it all, BD,

 

John Story

 

www.ruinedbynatwest.com

Edited December 11, 2009 by ruinedbynatwest
typos

[Bigdebtor]

John

 

Difficult to answer "at what level did it start" as I had a sole trader business first (early 90's) which had no overdraft when it started and later varied between a credit balance and £30k overdraft. The Ltd Co firstly got a £35k overdraft facility (in 2000) then raised to £55k in 2001 - both with personal guarantees from me. We also had an under £15k joint overdraft and the bank then asked for a Standard Security on our house - which we thought covered only the joint debts.

 

The bank agreed to tell Mrs BD if I sought to increase the Company overdraft further. While the Bank didn't let the Ltd Co overdraft go beyond £55k, it did let me build up another £52k on the sole trader bank account (which was still there but dormant) - so avoiding telling or seeking Mrs BD's consent.

 

I had to fold the first Ltd Co as I had issues with CCJ's from other trade creditors but made the sole trader business into a new ltd co. The Bank then moved the entire overdraft from both the defunct co and the sole trader account - then totalling £107k into the new ltd Co account.

 

I have since repaid £27k - so it is now around £80k but the bank is now demanding full payment or threatening to make us sell our house - that is why I need to know if the Standard Security which distinctly refers to Mr AND Mrs BD as the "debtor" can be interpreted as being for debts owed "jointly and severally" or just for Joint debts, of which there is only tour mortgage and our joint overdraft.

 

BD

[ruinedbynatwest]

"We also had an under £15k joint overdraft and the bank then asked for a Standard Security on our house - which we thought covered only the joint debts."

 

Hiya BD !

 

I know how it is. Incredibly complicated history you start to put there. I had the same situation, insofaras I found it was very easy to lose people in the detail (BUT - that's where the devil lives) whereas you will remember the significance of every single development as the debt grew.

What documents did the bank issue ? There are common law issues here as well as statutory ones. The banks owe a duty of care when one arises on the facts. Was the bank negligent ?

 

"Joint O/D of under £15k" is regulated under Section 8 CCA, but O/D's were exempted from the documentational reqs of the CCA for years and then the requirement to document reemerged in 199..... (shouldn't have ever been exempted from the Documentational reqs, 'cos this is where the dodgy traders were putting their shareholders' and depositors' money), but the charge sounds like an "all monies" affair - which covers global borrowings on any account, ANY ACCOUNT, whether joint & several, sole, ANY - in which case, "Unfair terms in consumer contracts", springs to mind, as does "Undue Influence" , or "inequality of bargaining power" IF you're saying that the bank took advantage in some way, whether it asked for something unfair or placed you at a "manifest disadvantage" by its acts and omissions? Was it negligent ? Did it require you to accept its advice as a condition for the loan, etc ?

 

This is where you can't beat proper "independent legal advice" from a qualified lawyer, which you appear to hint at in the regard of the bank's attitude toward Mrs BD. Did she ever receive independent legal advice ?

 

You may find that she has a claim against you for undue influence - it all gets very complicated.

 

I'm not a lawyer, but I see the arguments, having studied now (and having been subjected to a fair few er, 'surprises' \along my journey these past 20 years. It's all about the facts of your particular situation. Were you placed at a adisadvantage by your bank ? Was there abuse of any kind ?

It's not easy. But only you know the answer to that one.

 

Good luck with it, BD. You now need proper advice from a qualified source.

 

John Story

www.ruinedbynatwest.com

[intree]

FOUND THIS LINK - bit worried myself as I have 4 no show agreements - FOS advice to court could become a problem - if this report is reliable.

 

Debt-free cases on brink of judgement | This is Money