MandM vs Egg Loan ***Won with Strike Out***

[MandM]

I think it would be useful to get to the bottom of this, as it sounds like the creditor doesn't realise that the contract is ended and if this new DN 'goes off' then you'll have a new default on your credit file to deal with.

 

If the termination letter is from the sols then I guess it is possible that the creditor believes the contract endures. However, if the original claim was for the full amount of monies unpaid, then there is no doubt at all that the contract is ended even if you have no TN from the creditor. The basis of any contract disappears when both sides go to court.

 

I think I would definitely notify the sols (cc the creditor) to advise them of this, and it might also be worth mentioning that this is an abuse of process and represents misuse of data if this is being recorded with the CRAs.

 

LA

 

Bible sized letter being put together. If I make it all clear NOW then that will certainly help with costs if they go for it again.

 

Not sure whether Egg will be interested in backing off. They can be very ignorant when it comes to the facts but would have thought that the Sols at least had a clue.

 

My, we do have a lot of guests today

 

Had 7 at one point lol.

 

M

[Guest HeftyHippo]

yep, go for costs, its the only thing they understand, and abuse of process.

 

 

My, we do have a lot of guests today

 

Had 7 at one point lol.

 

M

 

best put kettle on then!

[NGEddie]

Bible sized letter being put together. If I make it all clear NOW then that will certainly help with costs if they go for it again.

 

Not sure whether Egg will be interested in backing off. They can be very ignorant when it comes to the facts but would have thought that the Sols at least had a clue.

 

 

Mad isnt it, would be interested to have a look at what you are going to send them mate, maybe pm me it if you dont mind incase you dont put it publically on here!

[Guest HeftyHippo]

MandM, another angle:

 

From OFT guidance on debt collection oft664:

Creditor responsibility for third parties

1.9 If consumer credit licence holders choose to do business or continue to do business with third parties engaged in questionable fitness behaviour, then their own fitness will be called into question. Our aim is to ensure that creditors do not

ignore the unfair practices of debt collectors, whether in-house or external, acting on their behalf. It is not for the OFT to specify in this guidance how choices about third party selection are made nor to advise on desired conduct between third

parties. However, during any investigation in this respect, we would expect to see that care had been taken in the selection process, complaints had been investigated and that firm action had been taken as appropriate. It would be unlikely that we would take action against a creditor who could demonstrate such action had been taken.

Now, I'm sure you can make out a case for unfit behaviour, either in terms of competence/ignorance of rules, or deliberate malpractice from the solicitor or DCA who thinks a DN can be respectively applied to a dead agreement. Accordingly, a complaint to the creditor about the fitness of the 3rd party should be investigated.

 

I'm sure the creditor will feel the 3rd party is fit, but it involves them in work and whatever they say can be used against them - why do they think they are fit when they either don't know, or ignore basic contract law? etc

 

Its also more work that ramps up your costs ...and theirs

[gh2008]

I should also mention that it appears that this thread is being monitored . Will update this further when I can.

 

M

 

This is a very valid point.

 

We all must be aware that it is *very* easy to find almost any thread on CAG with Google

 

All they need to do is type a phrase from one of your letters and the creditor name and perhaps the solicitors involved and hey presto your thread pops up.

 

BUT this can be used very clearly to your advantage.

 

They, having read the thread, know they have no cause of action and if they decide to make another claim it would certainly open the gates for a claim for costs against them on an indemnity basis. Read BOS -v- Mitchell

 

found X20's words http://www.consumeractiongroup.co.uk/forum/show-post/post-2343485.html

[gh2008]

I think it would be useful to get to the bottom of this, as it sounds like the creditor doesn't realise that the contract is ended and if this new DN 'goes off' then you'll have a new default on your credit file to deal with.

 

If the termination letter is from the sols then I guess it is possible that the creditor believes the contract endures. However, if the original claim was for the full amount of monies unpaid, then there is no doubt at all that the contract is ended even if you have no TN from the creditor. The basis of any contract disappears when both sides go to court.

 

I think I would definitely notify the sols (cc the creditor) to advise them of this, and it might also be worth mentioning that this is an abuse of process and represents misuse of data if this is being recorded with the CRAs.

 

LA

 

I agree - time to hit the CRAs me thinks.

 

The debt still exists no-one denies that, however it is a common law debt and in many ways in law it can be considered a gift

.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

andFrancis Bennion, who was the draftsman of the Consumer Credit Act 1974:

 

Consumer Credit Act 1974 s 127(3):

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the Credit Agreement it deserved to find it unenforceable, and that the Court should not have power to relieve it from this penalty.

Now whilst these two quotes refer to s.61 IMHO they can be taken to refer to the prescribed terms within the CCA as a whole.

[gh2008]

morning guests

[Lord_Alcohol]

I agree - time to hit the CRAs me thinks.

 

The debt still exists no-one denies that, however it is a common law debt and in many ways in law it can be considered a gift

.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

andFrancis Bennion, who was the draftsman of the Consumer Credit Act 1974:

 

Consumer Credit Act 1974 s 127(3):

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the Credit Agreement it deserved to find it unenforceable, and that the Court should not have power to relieve it from this penalty.

Now whilst these two quotes refer to s.61 IMHO they can be taken to refer to the prescribed terms within the CCA as a whole.

 

A brilliant analysis GH!

 

I think anyone off to court (or even submitting a defence based on incorrect paperwork) should quote the above or include in a counterclaim for UR.

 

What DJ in their right mind would argue with this?

 

LA

[MandM]

This is a very valid point.

 

We all must be aware that it is *very* easy to find almost any thread on CAG with Google

 

All they need to do is type a phrase from one of your letters and the creditor name and perhaps the solicitors involved and hey presto your thread pops up.

 

BUT this can be used very clearly to your advantage.

 

They, having read the thread, know they have no cause of action and if they decide to make another claim it would certainly open the gates for a claim for costs against them on an indemnity basis. Read BOS -v- Mitchell

 

found X20's words http://www.consumeractiongroup.co.uk/forum/show-post/post-2343485.html

 

Ah ha . Nice find gh . Am reading a couple more too. Boy, do I need a thread filing system lol.

 

And yes, the threads are sooo easy to find through google. A few key words and you're there.

 

BUT this can be used very clearly to your advantage.

Yep . It will.

 

M

[MandM]

I agree - time to hit the CRAs me thinks.

 

The debt still exists no-one denies that, however it is a common law debt and in many ways in law it can be considered a gift

.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

andFrancis Bennion, who was the draftsman of the Consumer Credit Act 1974:

 

Consumer Credit Act 1974 s 127(3):

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the Credit Agreement it deserved to find it unenforceable, and that the Court should not have power to relieve it from this penalty.

 

Now whilst these two quotes refer to s.61 IMHO they can be taken to refer to the prescribed terms within the CCA as a whole.

 

 

I can see where you're coming from, but didn't this relate more to missing prescribed terms within the original agreement as opposed to missing (required) wording in the (latter) DN?

The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid

, particularly this bit.

 

The agreement itself was never argued as the DJ (kindly) bent me away from it on the day and concentrated on the DN. Was always a weak issue from my part anyway as it was an 08 agreement so tough to argue.

 

Or am I missing the point which isn't difficult as i'm suffering 'reading overdose' again.

 

M

[Lord_Alcohol]

I can see where you're coming from, but didn't this relate more to missing prescribed terms within the original agreement as opposed to missing (required) wording in the (latter) DN? , particularly this bit.

 

The agreement itself was never argued as the DJ (kindly) bent me away from it on the day and concentrated on the DN. Was always a weak issue from my part anyway as it was an 08 agreement so tough to argue.

 

Or am I missing the point which isn't difficult as i'm suffering 'reading overdose' again.

 

M

 

I think GH made the point that the quotes covered s61 and s127 but it would be very strange if the same language did not apply to s88 or, in fact, any part of the CCA.

 

I read these quotes as stating that there is little room for 'interpretation' of the Act. The language is clear enough. DJ's should not (IMVHO) spend time in interpreting the wording of the Act to suit one or other of the parties before him;

 

It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the Credit Agreement it deserved to find it unenforceable

 

As a DN is regulated by the same Act as the agreement itself, I would think that DNs (and TNs) should be just as compliant and that the comments made by Mr Bennion would apply to all CCA-related docs.

 

Just my view of course...

 

LA

[Desperate Daniella]

But the fact is that DJs do decide to interpret the law on DNs to suit their own ends - and those of the banks' solicitors.

[Guest HeftyHippo]

As a DN is regulated by the same Act as the agreement itself, I would think that DNs (and TNs) should be just as compliant and that the comments made by Mr Bennion would apply to all CCA-related docs.

Thats incorrect.

 

DNs are regulated by

CCA (Enforcement, Default and Termination Notices) Regs 1983 [sI 1983 1561]

 

Agreements are regulated by

CCA (Agreements) Regulations 1983 [sI 1983 1553]

 

both as amended

 

The Act itself is of course a different statute.

 

I think MandM you must avoid the temptation to make some statement or opinion fit your situation. You know if they try court action again, your argument will rely on facts and law, not subjective opinion.

 

Keep your argument simple, that way it is harder to find a loophole, and harder for the judge to be distracted away from the central theme - the agreement was ended some time ago, and is not subject to the requirements of the CCA so no matter what number of CCA documents they serve, they are irrelevant and have no power.

Edited June 2, 2010 by HeftyHippo

[Lord_Alcohol]

But the fact is that DJs do decide to interpret the law on DNs to suit their own ends - and those of the banks' solicitors.

 

Yes, true enough, but were the DJ to be reminded of the wording of the Act and Mr Bennion's intent, then it might help. The words used themselves are also helpful (must and shall, rather than may or should).

 

MandM was 'lucky' in that the judge was prepared to look at the law. Some DJs don't bother (as we know) and will base a judgement on any old admission they can coerce out of the defendent, faulty documentation or not. This was the case for cosalt in his recent repossession;

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/177130-repo-order-help-defence.html

 

Hence the need to assist the judge by providing the framework and intent of the original author of the Act to try and ensure that he doesn't 'misdirect' himself...and to never admit anything

 

LA

[Desperate Daniella]

That is my point exactly. You can say all that to a judge and he can still choose to ignore the faulty DN.

 

The judges need to be made to understand that they have NO discretion here. It's not family, criminal, or anything where they have to weigh up the evidence. They just have to stick to the LAW, as laid down in the ACT which is to protect CONSUMERS.

[Lord_Alcohol]

As a DN is regulated by the same Act as the agreement itself, I would think that DNs (and TNs) should be just as compliant and that the comments made by Mr Bennion would apply to all CCA-related docs.

/quote]

Thats incorrect.

 

DNs are regulated by

CCA (Enforcement, Default and Termination Notices) Regs 1983 [sI 1983 1561]

 

Agreements are regulated by

CCA (Agreements) Regulations 1983 [sI 1983 1553]

 

both as amended

 

The Act itself is of course a different statute.

 

I think MandM you must avoid the temptation to make some statement or opinion fit your situation. You know if they try court action again, your argument will rely on facts and law, not subjective opinion.

 

Keep your argument simple, that way it is harder to find a loophole, and harder for the judge to be distracted away from the central theme - the agreement was ended some time ago, and is not subject to the requirements of the CCA so no matter what number of CCA documents they serve, they are irrelevant and have no power.

 

Nonsense!

 

The various regulations amend the Act. They are statutory instruments that are allowed for within the Act itself and should be considered as modifications of the Act.

 

If you read the Regs themselves you can see that they are intended to modify the Act in the various places mentioned at the top of each SI.

 

The Act is not "a different statute". The subsequent regulations merely amend the statute - they do not create new ones. We are considering a single statute - the 1974 CCA (as amended by the 2006 Act) - so please let's try to keep things simple and accurate.

 

I also do not consider Mr Bennion's remarks to be subjective opinion, or the letter of the law to be a distraction for the judge.

 

None of this affects MandM - these were general remarks regarding defective DNs.

 

LA

[Lord_Alcohol]

That is my point exactly. You can say all that to a judge and he can still choose to ignore the faulty DN.

 

The judges need to be made to understand that they have NO discretion here. It's not family, criminal, or anything where they have to weigh up the evidence. They just have to stick to the LAW, as laid down in the ACT which is to protect CONSUMERS.

 

I completely agree! The trick is to make the argument completely compelling - easier said than done I know

 

LA

[Guest HeftyHippo]

Lord alcohol.

I use the term statute to cover all applicable legislation, Acts, Regulations etc, ie, in a broad sense

 

The SIs I mentioned do not modify the 1974 CCA. The CCA itself carried provision for other 'statutes' to govern, regulate or control particular aspects of it. Hence they are a Statutory Instrument, a document gaining its authority from the CCA itself. To say that they modify the Act is stupid. They are allowed for by the Act and address particular issues only. They are an extension to the Act, intended to be there and intended to cover particular, specific parts of governance and regulation.

 

Regardless of all that, we are not considering a single 'statute'. We may be considering a single Act, the 1974 Act as amended, but are also considering various other documents such as SIs which impact on particular aspects of the Act. The Act cannot be considered in isolation. If the Act covered everything there wouldn't be any other regulations!!

 

Bennions comments, unless attributed in an official, interpretative (of the Act) capacity, are interesting, but nothing more. I haven't even seen the original source of that quote, and I don't suppose many people have, so it may be taken completely out of context. In any case, his opinions are just that. His intentions are just that. It doesn't matter what he thought or intended. He simply drafted the document. It was approved by Parliament, and its Parliament's intentions and opinions that matter. His thoughts carry no official weight. A court should enforce the law, not heresay opinions. I would hazard a guess that Bennion was in overall control of the drafting of the document, and didn't draft every word of the act. In such a case he may very well simply be claiming credit for the work of another. He may very well not have realised the impact of the clause concerned at the time (who could have?) but is simply capitalising on it. Who knows?

 

It is the court's job to interpret the law, ask any judge, and it their opinion as to the merits of any particular part of any statute.

 

Notwithstanding any of the above, any argument that the CCA and associated SIs etc should be interpreted as a whole is interesting, but I fear not of much help to MandM.

 

The last thing I think he needs is to widen the scope and bring in arguments of interpretation of many documents. His situation is quite clear - his agreement is ended and as such, the creditor cannot impose or take advantage of any requirements or provisions of the agreement that applied when it was live. That includes serving CCA required documents such as DNs.

 

There is however, another argument on this site that even after termination, an agreement is still subject to the CCA. In that case, it refers to the consolidation of different accounts, loans overdrafts and cards etc. However, by extension, if the CCA still applies post termination, then there is an argument that CCA documentation can be served post termination and that would affect MandM. It would also imply IMHO that a terminated agreement is never actually dead as it is still covered by the CCA....

 

Thats an area possibly worthy of debate, but I think MandMs case would be better served by a narrow argument about specific facts and timelines rather than a wide debate about the interpretations and requirements of one document being applied to others, and the subjectivity it brings.

[Lord_Alcohol]

Regardless of all that, we are not considering a single 'statute'.

 

Yes we are.

 

When you receive a DN for breach, it is served under "Section 87(1) of the 1974 Consumer Credit Act" and nothing else. This is because the 1983 Regs have modified parts of s87 of the Act. This is not "stupid" as you say, but an intrinsic part of SIs. SIs require a parent Act to exist; they are not separate entities as you claim (separate "statutes").

 

If you were correct then DNs would be served "under the 1983 Regulations" and not s87 of the 1974 Act.

 

I think your analysis of CCA is completely wrong.

 

LA

[Guest HeftyHippo]

whatever

[gh2008]

I apologise for not referencing the quote a quick Google and here you are

 

http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf

[Lord_Alcohol]

I apologise for not referencing the quote a quick Google and here you are

 

http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf

 

A bit more than "interesting" n'est pas, if our law-makers were of the same mind?

 

Not wanting to get HH's back up again, this does appear to show a very deep-rooted requirement for compliance of CCA docs. If a DN is issued under s87 but must comply with s88, why should its requirement for accuracy be any less than that of s127?

 

What's sauce for the goose...etc.

 

LA

[vandermerwe]

Please subscribe me to this thread as I need to study it in detail and am a bit preoccupied as living alone whilst wife has been returned to hospital due to negligence of local council and NHS.

 

Yes, have commenced legal action against NHS using household legal expenses insurance:D for funding.

 

Vandermerwe

[Stopthethieves]

Anything happened regarding the 2nd default notice???

[volvo]

subbing