Are My Agreements Enforceable?

[the_shadow]

What happened in this case Shadow?

 

Settled out of court ;-)

 

S.

[johndeevoy]

Is there a link on here Shadow?

 

If not do you mind a few questions? :

 

1) Did you issue against them or they issue against you?

2) Did you settle up with them by paying a percentage of the 'money owed'?

[the_shadow]

Is there a link on here Shadow?

 

If not do you mind a few questions? :

 

1) Did you issue against them or they issue against you?

2) Did you settle up with them by paying a percentage of the 'money owed'?

 

 

Yep..

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/183291-pmw1971-capital-1-a.html

 

1) I issued against them for PPI+charges

2) I reduced my balance and am paying off the remainder at favorable terms

 

S.

[johndeevoy]

Thanks man, I'll check out the link.

 

Im bumping this as I am about to issue proceedings against a creditor for a credit card debt worth quite a bit of money.

 

I am going to argue under s127(4) as set out in my previous post. No signature or date of execution means that the agreement was never 'made' and the creditor has therefore placed themselves in a position where they cannot comply with other requirements of the CCA.

 

It will be difficult I think for the creditor to prove compliance with s64 if they cannot prove a date of execution (or 'making') of the agreement.

 

Any further thoughts before I start drafting POC?

[pt2537]

Ok, you need to read Rankine v MBNA the judgment of Gage LJ in the Court of Appeal,

 

run that argument about 127(4) on a credit card where there were no antecedent negotiations and you will fail, voluntary cancelable is not the same as statutory cancelable

 

Unless you fully understand the area of law and it would seem this is an issue here, you will fail. We litigate against all the biggest banks and the arguments we use are miles away from your points im afraid

 

johndeevoy said:

I understood that credit cards were not a statutory cancelable agreement but I thought I read somewhere on the forum that s64 applied to any credit card agreement where the creditors include a cancelation clause, thereby making the agreement 'cancelable'. NO IT DOES NOT - PLEASE READ RANKINE VS MBNA.

 

It can only be cancellable if the provisions of the act make it so and a credit card is unlikely to be concluded with antcedent negotiations

 

Maybe I am mistaken but it would certainly not hurt to argue that such an agreement is 'cancelable', for a start the defence may not know the difference between what is and isn't and offer no counterargument.

 

I'm going to include it anyway and leave it up to the defence to make the point that s64 does not apply.

 

The main jist of my claim will be that the agreement is improperly executed, and in fact was never executed according to statute, and it is not justified for the Courts to enforce the agreement by looking for a common law solution (which is what the Courts do each and every time they 'enforce' an improperly executed agreement). I think there is a nice quote from Wilson that I can use. re: looking for a common law solution when statute offers none.

im sorry to say but issue on these grounds and you will lose, i would slaughter you in court let alone counsel. I litigate professionally and i cannot see how you would succeed, are you hoping that the county court will ignore the binding authority of the court of appeal?

 

Home Page has the case i refer to , please READ IT!!!!!! or you will lose a lot of money

[johndeevoy]

The s64 argument is called 'chancing your arm as a litigant in person'. So what if that particular argument fails if I am up against someone that makes the correct rebutal?

 

The fact is that the 'agreement' was never executed according to statute. Statute says the creditor has to sign the agreement for it to be executed. Yes, the Courts can enforce such an agreement, but why should they? They would need to have a justifable reason to do so otherwise the statute becomes mute which cannot be a correct functioning of the law. The Courts cannot simply ignore the statute and make up their own little rules based on some common law principles of intention to create legal relations.

 

No legal contract was ever entered into and I think that must mean something, in contrast to your 'I cannot see how you would succeed' statement.

 

 

Thanks for the info man. Its pretty clear cut really isn't it?!?! LOL!

 

I guess I'll just forget about that argument. Cheers.

[johndeevoy]

Hi folks, I havn't been on the forum in a while. I have been stalling a few of my creditors for over 2 years. I want to take action against a few of them now for basically destroying my credit file and continuing to harrass me over the 'debts'. I know there is good advice on here but I don't have time to retrawl the forums looking for specific details. Hopefully somebody can help in this thread. An outline of where I am at is:

 

- CCA request sent to which they provided a 'terms and conditions' booklet

- Request under Data Protection Act and pre-litigation request for discovery sent to which they provided some statements saying they would provide more in another letter (which they never did). Again they could only provide a generic T&C booklet.

- They put a default on my credit file and continue to instruct different DCAs.

- I have had no correspondence with the creditor directly in 2 years - I made it clear that the account was disputed and left it at that

- The defaults on my credit file are really starting to hurt - I have £70,000 of equity in my home and my mortgage company refused to lend me even an additional £2,000! I really need the money to carry out repairs to the house.

 

QUESTIONS

1) Is it a good idea for me to try and sue the creditor or should I wait and see what they do? I am happy enough to defend myself if they issue proceedings.

2) I seem to remember reading that the standard sum of compensation awarded for improper destruction of a persons credit file (defamation?) was £1,000. Can anyone point me to this caselaw?

3) Can anyone help me with a template Statement of Claim?

 

Thanks.

[The Mould]

There isn't a template for a statement of claim, as each claim will be different.

 

Practice Direction - Pre-Action Conduct states the procedures to adhere to before filing a claim to Court.

 

Did you default on the agreement?

 

Did they issue a Default Notice?

 

When did they last make an entry on your credit file?

 

If you can show that the Default is defamatory, then you would be entitled to any credit that was denied to you because of the adverse data on your credit files.

 

Defamation, in such a claim of this type the limitation period is 12 months for bringing the action.

 

You need the Credit Agreement, how old is the agreement/account?

 

Kind Regards

 

The Mould

[Guest]

re dpa request - complain to the ICO if they haven't complied with a dpa request and see how that goes. suing them could be risky re costs.

i think the case you maybe thinking of is Kpohraror v woolwich building society 1996?

re defaults, i think this maybe still current [ATTACH]22300[/ATTACH]

 

ps. also note Section 159 'correction of wrong information' of the Consumer Credit Act which may be of some help if you need to correct anything re CRA?

 

imo

Edited October 7, 2010 by Ford
ps

[johndeevoy]

@the mould - I took out the card pre 2007. I don't think they have a signed agreement. Even if they do they have not complied with any of my 3 legal requests for sight of it (CCA, DPA and pre-lit discovery). They defaulted my credit file sometime in 2008. From what you are saying it is too late to claim for this now? No, because the defamation is ongoing - my mortgage company refused me credit only last week. With regards templates, yes the details of all claims will be different but the outline of a Statement of Claim for someone who wants the 'debt' declared legally unenforceable due to no signed agreement existing and compensation for marking a default and instructing DCAs when the account was in dispute should be fairly common.

 

@ ford - I did a lot of research into these matters in 2007-2008 and my conclusion was that complaining to the ICO was a waste of time. Have you heard of any successes coming from ICO complaints?

 

TY for the caselaw and info on s159

[Guest]

@ ford - I did a lot of research into these matters in 2007-2008 and my conclusion was that complaining to the ICO was a waste of time. Have you heard of any successes coming from ICO complaints?

 

TY for the caselaw and info on s159

 

yes, there have been a few threads on cag where ICO intervention has resulted in compliance.

also, if you sue without first going to the ICO then that may go against you, particularly re trying to resolve matters before going to court, and costs for eg. IMO.

Edited October 8, 2010 by Ford
typo

[johndeevoy]

Thanks for the help Ford. You make a good point although I have no costs issues to worry about - this case falls within the Small Claims limit in Northern Ireland. I will complain to ICO first to keep myself right.

[The Mould]

Are they still processing your personal subject data to credit reference agencies, or any other organization for that matter?

 

You will (or should in any event) need to serve a Letter Before Claim upon them before you commence with any proceedings against them (if the matter cannot be resolved).

 

The Courts will not declare an agreement uneforceable unless the Court can require sight of it.

 

2008 they make the entry (adverse data) on your credit file, so defamation cannot be pleaded because of the limitation period applying, however, if you can show that the processing of your personal subject data is unlawful, then you have a claim under s13 of the DPA for damage and distress.

 

Kind Regards

 

The Mould

[reallymadwoman]

I feel I have to warn against issuing proceedings against a creditor in these circumstances, for a number of reasons.

 

1. The failure to supply a copy of the agreement may indicate that no agreement exists, but that does not mean the debt has ceased to exist, all it means is that the creditor cannot enforce the agreement through the courts.

2. Issuing proceedings is likely to prompt a very thorough search for the agreement anyway. Unless you are absolutely certain you didn't sign an agreement, it is likely to turn up in some form.

3. Unless you can state categorically that you did not borrow/spend the money alleged to be owing, I would doubt that reporting the debt to the CRAs is defamatory. As above, the debt still exists, agreement or no agreement.

4. About the only grounds you might have are that if you didn't sign an agreement then you didn't agree to your data being processed, however consent isn't the only reason the creditor is allowed to process your data and I doubt that line of attack would succeed either.

5. Finally, and perhaps most important of the lot, a County Court judge could quite easily decide the case is too complex for small claims which could easily leave you with a large costs bill.

[johndeevoy]

I feel I have to warn against issuing proceedings against a creditor in these circumstances, for a number of reasons.

 

1. The failure to supply a copy of the agreement may indicate that no agreement exists, but that does not mean the debt has ceased to exist, all it means is that the creditor cannot enforce the agreement through the courts.

2. Issuing proceedings is likely to prompt a very thorough search for the agreement anyway. Unless you are absolutely certain you didn't sign an agreement, it is likely to turn up in some form.

3. Unless you can state categorically that you did not borrow/spend the money alleged to be owing, I would doubt that reporting the debt to the CRAs is defamatory. As above, the debt still exists, agreement or no agreement.

4. About the only grounds you might have are that if you didn't sign an agreement then you didn't agree to your data being processed, however consent isn't the only reason the creditor is allowed to process your data and I doubt that line of attack would succeed either.

5. Finally, and perhaps most important of the lot, a County Court judge could quite easily decide the case is too complex for small claims which could easily leave you with a large costs bill.

 

I have to say I disagree with a lot of this - especially the line I have often heard 'the debt still exists, even though it cannot be legally enforced'. Sounds like a lot of old codswollop invented by the banks/DCAs to allow them to continue to issue defaults or scare people into paying up.

 

A proper analysis is that the 'debt' only arises under the contract for credit, the contract is governed by statue and regulation (namely the CCA). Where the CCA states that an agreement cannot be enforced by the Courts (e.g. an agreement pre2007 which does not have the debtors signature) then it clearly follows that no debt can exist. An agreement that cannot be enforced by the Courts is legally void. This is actually very basic legal reasoning.

 

In fact, I seem to recall caselaw wherein the judge declared that the sums passed from the creditor to a debtor in such circumstances are not recoverable and can only be described as 'a windfall'. I cannot recall which case this was from - does anyone know?

Edited October 12, 2010 by johndeevoy

[reallymadwoman]

I believe in the Wilson case the judge described the loan as a 'gift', however I will stand by my opinion that taking a creditor to court in these circumstances is extremely risky.

 

I believe it was the Wakesman case where the judge decided that reporting a debt to CRAs was not enforcement.

[johndeevoy]

I've only recently been catching up on events in the CCA world and am completely shocked and confused by the decision in McGuffick v RBS [2009] EWHC 2386 (Comm).

 

At 67. 'If the court declines to make an order or section 127(3) precludes the court from making an order, then the creditor cannot enforce the agreement. Its rights continue but cannot be enforced.'

 

From this Judge Flaux concludes that a creditor can continue to pursue apparant 'rights' under a unenforcable credit agreement, such as seeking payments and interest due and reporting to CRAs.

 

It therefore seems that anyone can claim to be a creditor and destroy your credit file, even though no legally enforceable credit agreement exists. Furthermore, if a debtor is to take proceedings against a creditor and the agreement is not enforced by the Courts, this judgement means that a creditor can still chase you for the money and report an unsatisfied debt to CRA's.

 

How then can one ever remove a CRA default or claim defamation against a creditor who does not have an enforcable agreement?

 

I'm amazed that this decision wasn't appealed. it doesn't seem to reconcile with Wilson v First County which I always understood concluded that unenforcability extinguished all the creditors rights.

 

Please someone offer some thoughts as this is driving me crazy (I want to sue on of my 'creditors' who don't have the original credit agreement but continue to instruct DCA and record defaults with CRAs).

[catquest]

Not enforcable only means that the creditor cannot enforce payment by way of obtaining judgement. This doesn't mean that he cannot claim that you owe the money. Normally what happens is that a creditor has proof in the form of statements and payments going through the account.

[asokn]

Absolutely. The lack of an agreement is just a technicality which prevents enforcement. If you've not made payments then your credit file should reflect that, whether the debt is legally enforceable or not.

[Gaston Grimsdyke]

If an agreement is unenforceable it does not render it "null and void" as is popularly believed. If the money is owed then the creditor is entitled to record that fact at the CRAs and ask the debtor to pay. The only thing they can't do is pursue a court case to a judgment, as is made clear by McGuffick. Perhaps McGuffick wasn't appealed because it was a correct decision.

[johndeevoy]

Sorry guys but i think you are wrong. I have carried out further reading since I posted and I believe that the McGuffick decision only relates to a temporary breach of s77/78 (unenforcability due to a failure to provide copy CCA) whereon the creditor ultimately provides said copy CCA.

 

Unenforcability due to the agreement being improperly executed or under s127 for pre 2007 agreements means that the creditor loses all rights under the alleged agreement as per Wilson -v- First County.

 

McGuffick was only a high court case and the judge does not have the power to reverse Wilson as that was a Lords decision.

 

asokn said:

Absolutely. The lack of an agreement is just a technicality which prevents enforcement. If you've not made payments then your credit file should reflect that, whether the debt is legally enforceable or not.

 

Not so. Only a valid contract means that payments are owed. You have just spouted propaganda invented by the banks so they can pressure people into paying by trashing their credit file. A legally binding (enforceable) agreement must be in place otherwise the creditor has no rights, including rights to record information with CRAs.

 

Gaston Grimsdyke said:

If the money is owed then the creditor is entitled to record that fact at the CRAs and ask the debtor to pay. .

 

You are quite right. And how to determine 'if the money is owed'? Only by examining the credit agreement which must be fully compliant with the CCA1974/2006.

[asokn]

Not so. Only a valid contract means that payments are owed. You have just spouted propaganda invented by the banks so they can pressure people into paying by trashing their credit file. A legally binding (enforceable) agreement must be in place otherwise the creditor has no rights, including rights to record information with CRAs.

 

OK. If you believe you have the answer and don't want to hear an alternative view then why are you posting?

 

There is no requirement for a creditor to prove the enforceability of an agreement before it can register a default with a CRA. This is because the creditor does not have to prove the enforceability of the agreement before it takes that action.

 

Remember that the court said in McGuffick: "It follows that, in my judgment the reporting to CRAs and related activities do not constitute enforcement for the purposes of the Consumer Credit Act." This followed from a long and detailed analysis of the existing authorities including Wilson.

Edited April 10, 2012 by asokn

[johndeevoy]

OK. If you believe you have the answer and don't want to hear an alternative view then why are you posting?

 

There is no requirement for a creditor to prove the enforceability of an agreement before it can register a default with a CRA. This is because the creditor does not have to prove the enforceability of the agreement before it takes that action.

 

I found the answer after i posted as i explained above (McGuffick only applies to a s77/78 temporary breach).

 

Do you have any further authority that supports your position? Wilson -v- First County would suggest that a creditor has no rights under an unenforcable agreement. And this would make sense, why should anyone be able to avail of rights under a legally invalid contract?

[asokn]

Apologies, I have just amended my post but I think it deals with your later question.

[asokn]

Exactly, unenforceable contracts are not suddenly a write off because of some technicality. If you have taken money from someone and not paid it back then you will, to a greater or lesser extent, have to account for that.