Dissecting the Manchester Test Case....

[diddydicky]

hi, not really (IMO)

 

If the "account" is already in dispute prior to the application then that is a different matter

 

however,

 

the creditor has 12 days (plus postage) in which to comply with a s77/9 request and during that time the account cannot be considered to be "in dispute"- on the basis that a request for a copy of the agreement has been made.

 

the request may well have come from someone who is up to date with payments and simply wants access to the information that s77/9 allows him to ask for

 

Even if the creditor fails to comply with the request within the specified time limits then i cant see that this creates a dispute on the account- rather it means that the creditor is in breach of his obligations under s77/9 of the consumer credit act.

 

 

IMO for the "account" to be in dispute there would need to be some allegation that one side or the other has failed to perform one or more of the terms and conditions of the agreement

 

i do agree that sometimes a debtor feels he/she has to stop making payments to the creditor in order for the creditor to sit up and take notice of the failure to comply with the request- but i believe this is a personal decision and not a right

 

The act states that the creditor may not ENFORCE the agreement whilst he remains in default of a s77/9 request. It does not say that the debtor may cease to perform his obligations until such time as the creditor complies

 

It is my opinion that the creditors failure to comply with a s77/9 request is NOT an unlawful repudiation of the contract by the creditor and therefore does not afford the debtor the opportunity to elect to accept a repudiation or relieve himself of his continuing obligations under the agreement.

[means2anend]

hi, not really (IMO)

 

If the "account" is already in dispute prior to the application then that is a different matter

 

however,

 

the creditor has 12 days (plus postage) in which to comply with a s77/9 request and during that time the account cannot be considered to be "in dispute"- on the basis that a request for a copy of the agreement has been made.

 

the request may well have come from someone who is up to date with payments and simply wants access to the information that s77/9 allows him to ask for

 

Even if the creditor fails to comply with the request within the specified time limits then i cant see that this creates a dispute on the account- rather it means that the creditor is in breach of his obligations under s77/9 of the consumer credit act.

 

 

IMO for the "account" to be in dispute there would need to be some allegation that one side or the other has failed to perform one or more of the terms and conditions of the agreement

 

i do agree that sometimes a debtor feels he/she has to stop making payments to the creditor in order for the creditor to sit up and take notice of the failure to comply with the request- but i believe this is a personal decision and not a right

 

The act states that the creditor may not ENFORCE the agreement whilst he remains in default of a s77/9 request. It does not say that the debtor may cease to perform his obligations until such time as the creditor complies

 

It is my opinion that the creditors failure to comply with a s77/9 request is NOT an unlawful repudiation of the contract by the creditor and therefore does not afford the debtor the opportunity to elect to accept a repudiation or relieve himself of his continuing obligations under the agreement.

 

 

The above appears to be in harmony with the overall theme of unenforceable agreements....that rights and obligations still continue at common law as the contract still subsists.

 

Because the creditor has defaulted 'the account is in dispute'' NOT that it is Iredeemably Unenforceable=no contract=no rights/obligations

 

And correct 'The Act' does not expressly authorise or legally entitle the debtor to stop making payments, neither does it expressly make it an obligation for the debtor to continue to pay..it is silent on this and this gap is filled in by common Law Contract...which coincides with your analysis above.

 

 

m2ae

Edited April 16, 2010 by means2anend

[PriorityOne]

Ok guys.... I'll leave you to nitpick this one if you must....

 

I know what's worked for me and for countless others on here. My last few posts have aimed to share this experience without bringing in too much legal gumph that flies way over the head of a lot of people.

 

Unfortunately, this seems to happen on these forums from time to time.... and one helluva lot on here lately. It's beginning to sound like people are just spouting straight off the internet/from books....

 

Never mind...

Edited April 16, 2010 by PriorityOne

[Dotty50]

But the advice given on here is that if the CCC have not complied with your s77/78 request within the timescale required then you can send the account in dispute letter from the template library and at this point, you are within your rights to stop payment.

[diddydicky]

Ok guys.... I'll leave you to nitpick this one....

 

I know what's worked for me. My last few posts have aimed to share this experience without bringing in too much gumph that flies way over the head of a lot of people.

 

Unfortunately, this seems to happen on these forums from time to time.... and one helluva lot on here lately. It's beginning to sound like people are spouting straight off the internet/from books on here lately.

 

Never mind...

 

i think perhaps you might be taking things too personally,

 

we are all here to learn

 

if you are suggesting that we should not discuss/find out the correct legal position for fear of upsetting folk or because you dont think they have the capacity to understand i think that would be sad

 

i for one was not " nit picking" - but thought it pretty important that folk should be aware that the mere sending of a s77/9 request does not cause a "dispute" (on the basis that they could drop themselves in the doo doo if they take that as correct- and which makes it even more important that they understand the correct position)

 

 

there have been a number of cases very recently where caggers have gone into court as LIP's and lost cases that they should not have lost and where it was as plain as a pikestaff that they should not have done so- and that their lack of understanding of what they were being told - was their downfall.

 

i strongly believe that it is simply not good enough for caggers to "make the bullets" for uniformed caggers to go and fire off in court - without also making sure that they also understand the arguments that they are putting forward and the legal basis for them

 

i apologise if you have taken that personally

Edited April 16, 2010 by diddydicky

[PriorityOne]

i think perhaps you might be taking things too personally,

 

we are all here to learn

 

if you are suggesting that we should not discuss/find out the correct legal position for fear of upsetting folk or because you dont think they have the capacity to understand i think that would be sad

 

i for one was not " nit picking" - but thought it pretty important that folk should be aware that the mere sending of a s77/9 request does not cause a "dispute" (on the basis that they could drop themselves in the doo doo if they take that as correct- and which makes it even more important that they understand the correct position)

 

 

there have been a number of cases very recently where caggers have gone into court as LIP's and lost cases that they should not have lost and where it was as plain as a pikestaff that they should not have done so- and that their lack of understanding of what they were being told - was their downfall.

 

i strongly believe that it is simply not good enough for caggers to "make the bullets" for uniformed caggers to go and fire off in court - without understanding the arguments that they are putting forward and the legal basis for them

 

I apologise if you have taken that personally

 

I agree we are all here to learn but I'm not sure what I'm learning from you and M2AE to be honest..... except that according to the pair of you, I must have been an ignorant fool to place my accounts "in dispute" through a s77/78 request and as such, it must have been pot luck that creditors as well as DCAs have cancelled all legal proceedings.... and I've never been to court.

 

Would that be correct?

 

[diddydicky]

I agree we are all here to learn but I'm not sure what I'm learning from you and M2AE to be honest..... except that according to the pair of you, I must have been an ignorant fool to place my accounts "in dispute" through a s77/78 request and as such, it must have been pot luck that creditors as well as DCAs have cancelled all legal proceedings.... and I've never been to court.

 

Would that be correct?

 

 

If you are an ignorant fool then we are all "ignorant fools" in that very few if any of us on this forum are able to operate to a legal standard that we have not trained for- it takes many years of training to be even a wet behind the ears lawyer- but that is no excuse for not trying to get as much of the law right as we can!

 

 

there is indeed more than one way to skin a cat (or fillet a donkey)

 

 

In your case it may well be that you "got lucky" or that there were other reasons why the creditors backed down

 

as a general rule- i would say (IMO) that the chances of creditors going away simply because they failed to comply with a s77/9 request and the debtor told them the account was "in dispute" as a result of their failure is pretty remote (if only that were true)

 

 

so yes, in a nutshell it seems like you were indeed fortunate- but not an ignorant fool!!

[PriorityOne]

We are all "ignorant fools" in that very few if any of us on this forum are able to operate to a legal standard that we have not trained for- it takes many years of training to be even a wet behind the ears lawyer- but that is no excuse for not trying to get as much of the law right as we can! Agree... if you work on the assumption that everyone's going to end up in court and... if you don't get so wrapped up in "legalities" that you end up sounding like you've read a book.

 

In your case it may well be that you "got lucky" or that there were other reasons why the creditors backed down Wrong...

 

as a general rule- i would say (IMO) that the chances of creditors going away simply because they failed to comply with a s77/9 request and the debtor told them the account was in dispute is pretty remote (if only that were true) Wrong again.

 

so yes, in a nutshell it seems like you were indeed fortunate

 

Fortune didn't come into it..... but I kept a very neat paper trail, which was the point I was trying to make earlier.

 

I was told (quite adamantly by an alleged legal person) who was banned from these forums some time later.... that HFC would take me to court, that I was a fool to think they wouldn't, I was wasting my time responding to correspondence, that I should just ignore their correspondence .... and so on. HFC never took me to court.... and sold that particular account to a DCA who couldn't comply with a s78 request that was made to HFC nearly 3 years ago now. They tried to, but the doc. was incorrect.

 

A&L had already instructed solicitors.... Shoosmiths.... who dropped it and informed me in writing.... all on the basis of a s77 request. They were going to supply a microfiche copy and a reconstruction, but these never materialised because they knew I would have challenged them.

 

I try very hard to keep things straightforward on here because the vast majority of people really don't understand the legal jargon and are already stressed by the prospect of taking on these people, let alone acting as a LIP. I have no fear re. going to court, but not everyone has that confidence.

 

CCA 2006 and the removal of s127(3) has changed the gameplan somewhat... but the s77/78 request is still a powerful tool.

 

Edited April 16, 2010 by PriorityOne

[bustthematrix]

Hi Folks

 

We're all tussling pretty much around the same issues and as DDY as said, there's often a few routes to the same destination.

 

Surely being informed as to what and WHY things are done a certain way is the best approach, combined with knowing the pros and cons of each approach?

 

People can then decide how best they want to frame their 'attack' or 'defence' based on the guidance and info shared by the more knowledgeable and experienced people here.

 

We can all learn from each other with the right attitude.

 

P1, whilst you may not have learned much from DDY and M2AE, some of us have!

 

It's good to hear you all airing your thoughts! :)Please keep posting!

[diddydicky]

well what started the "debate" was my "correction (in post 2222) of the phrase that said that the "account is in dispute" when a s77/79 request is made- which implied that the mere request was sufficient to put the account into "dispute"

 

now you have explained more- it is clear that in your case they could not (ever) provide the agreement or that when they did- what they provided was not a valid agreement

 

that is an ENTIRELY different argument and a long way from saying that an account is in dispute on the basis that a s77/9 is made!!

 

that seems then to have cleared that up

[PriorityOne]

well what started the "debate" was my "correction (in post 2222) of the phrase that said that the "account is in dispute" when a s77/79 request is made- which implied that the mere request was sufficient to put the account into "dispute"

 

now you have explained more- it is clear that in your case they could not (ever) provide the agreement or that when they did- what they provided was not a valid agreement

 

that is an ENTIRELY different argument and a long way from saying that an account is in dispute on the basis that a s77/9 is made!!

 

that seems then to have cleared that up

 

Please see my post #2225 above re. for clarification of when an account is "in dispute"..... and you both still argued the toss...

[diddydicky]

as for making an assumption that folks cant understand the legal "Jargon" i would suggest that the "legal jargon" should be stated and then those that can absorb it can do so and those who cant do not have to

 

I would imagine debtors come in all shapes sizes abilities and professions and that it is a little insulting to assume that all other caggers are incapable of understanding legal argument

[PriorityOne]

as for making an assumption that folks cant understand the legal "Jargon" i would suggest that the "legal jargon" should be stated and then those that can absorb it can do so and those who cant do not have to

 

I would imagine debtors come in all shapes sizes abilities and professions and that it is a little insulting to assume that all other caggers are incapable of understanding legal argument

 

That's very cheap psychology DD.... but nice try

 

I'm not insulting people.... just stating a fact (IMO before you start). There are those that can understand it, of course... but the majority will struggle with it (IMO ).... and it's those that probably need our help the most.

[Dotty50]

I am nearly celebrating my 1st CAG birthday and although it's not very long compared to a lot on here, the advice given to me has worked....... so far.

 

Like Priority1, I am keeping a paper trail, I do not like to ignore anything (unless it is just a standard reminder).

 

Priority1, could you clarify you sentence in a previous post please as I think this has been mentioned in a letter I have just had back from Sainsbury's (BOS)? I am at work so not got access to it at the moment.

 

CCA 2006 and the removal of s127(3) has changed the gameplan somewhat... but the s77/78 request is still a powerful tool.

 

Thanks

[diddydicky]

you said in post 2225 The account is "in dispute" until such times as the creditor/DCA can comply with that request

 

that is incorrect- you are suggesting that the mere request for a true copy of the agreement puts an account into dispute and that it remains so until the creditor complies with the request

 

that is totally incorrect -

 

If the creditor fails to comply within the stipulated timescales THEN the creditor is in breach of his s78 obligations under the CCA

 

If the debtor stops payments however - he is in breach of the agreement (if a valid one exists of course)

 

A cagger would be foolish indeed if he made an assumption that the failure of the creditor to comply within 14 days was proof that he did not have a valid agreement

 

There is no part of the CCA that states that if a creditor is in default of his CCA obligations- the debtor may then breach his agreement

 

Indeed the ONLY sanction the CCA imposes on the creditor is that he may not enforce the agreement whilst the default continues

 

 

the debtor who then decides to stop payments "takes a chance" that the creditor has not got the agreement/or has an invalid one

 

Given that this will result in negative information being placed on the debtors credit files within 28 days of his failure to make a scheduled payment- if the creditor later comes up good with a valid agreement- then the debtor will have incurred bad credit information unnecessarily.

 

some caggers want to find out if the creditor has a valid agreement but not get bad credit info whilst doing so- others wont care much

 

it seems to me that this is not legal jargon and easily understandable to most people

[diddydicky]

That's very cheap psychology DD.... but nice try

 

I'm not insulting people.... just stating a fact (IMO before you start). There are those that can understand it, of course... but the majority will struggle with it (IMO ).... and it's those that probably need our help the most.

 

agreed

[brooooooooooce]

I'm following this little spat with interest.

 

I made a s78 request to MBNA in July last year - so now well over 9 months. I still await a reply. The most recent letter (last week) from MBNA totally dodges the issue of their non compliance with s78 by reminding me they can do anything they want to seek recovery of the debt except enforce.

 

Does a wait of 9+ months not give me grounds to 'dispute' the account? Or do I remain in proverbial limbo indefinitely? To avoid a legitimate 'dispute' does a lender simply fail to provide any kind of response and rely on everything it can do, short of enforce, to get paid?

[diddydicky]

the failure of the creditor is a breach of their obligations under s77/9 CCA

 

as i said - there is no part of the CCA which states that if the creditor is in default of the CCA then the debtor may breach the agreement

 

In many cases , the debtor is ALREADY in arrears when he makes the request, or alternatively he stops making payments because (like you) all the time he continues to honour his part of the agreement the creditor aint too concerned at ignoring his request.

 

 

If you stop making payments, and 9 , 12 36 months later the creditor comes up with a valid agreement- you will still be liable for those 36 missed payments

 

If you are still making payments then i would be inclined to write to them recorded delivery stating that if they fail to comply within a given time you will stop payments

 

i would also write to all three CRA's asking them to put that note on your files in relation to that creditor so that if they later default you others can see what has occurred

 

there is in fact (IMO) an advantage to a creditor if the debtor ceases making payments in these circumstances but i choose never to reveal it in open forum - bigger fools them

[bustthematrix]

reminding me they can do anything they want to seek recovery of the debt except enforce.

There has to be more to it IMO. I'm fed up of hearing that veiled threat from lenders who are in breach of the law.

 

What they're in effect saying is 'just because we can't legally prove the debt doesn't mean we didn't lend you money or that you don't owe us'!

 

Whilst that may be true, there has to be some remedy available to debtors who find themselves in this situation. Surely, if they can't lawfully enforce, apart from

a) Adversely mark your credit file and

b) Make life difficult for you in any further dealings with their institution or its subsidiaries

 

what else can they do without the backing of the force of law? Also, I still suspect on the lenders rights regarding the Credit Reporting issue aspect. If they cannot validate a debt legally, how can they lawfully record any information about that debt or the conduct of that account?

 

Doesn't stack up and is certainly worth further scrutiny...

[bustthematrix]

...I mean how can someone lawfully Default you or Terminate an agreement they clearly cannot evidence?

[diddydicky]

There has to be more to it IMO. I'm fed up of hearing that veiled threat from lenders who are in breach of the law.

 

What they're in effect saying is 'just because we can't legally prove the debt doesn't mean we didn't lend you money or that you don't owe us'!

 

Whilst that may be true, there has to be some remedy available to debtors who find themselves in this situation. Surely, if they can't lawfully enforce, apart from

a) Adversely mark your credit file and

b) Make life difficult for you in any further dealings with their institution or its subsidiaries

 

what else can they do without the backing of the force of law? Also, I still suspect on the lenders rights regarding the Credit Reporting issue aspect. If they cannot validate a debt legally, how can they lawfully record any information about that debt or the conduct of that account?

 

Doesn't stack up and is certainly worth further scrutiny...

 

mainly because although you may contest the legal enforceability of an agreement, it is almost impossible to deny that they have lent you money- and the CRA files are all about alerting potential future lenders to your ability/willingness to repay monies that you have previously borrowed. IMO you will NEVER convince any court that the creditor does not have the right to report the conduct of the account - regardless of whether it was a legally enforceable debt or not- it was still a debt and the creditor had an obligation to report accurately its conduct

 

i know i know i know what peeps might say about no agreement- no permission

 

but i just don't buy it

 

you cant have your cake and eat it!

 

the proposition that one can borrow money- get into debt and hide that fact from future potential lenders is NEVER going to find favour legally as long as i have a hole in my bum!

 

however they can only sit on their hands for 6 years (which may soon be reduced to 3 yrs in line with our european neighbours) then they are stuffed

[bustthematrix]

mainly because although you may contest the legal enforceability of an agreement, it is almost impossible to deny that they have lent you money- and the CRA files are all about alerting potential future lenders to your ability/willingness to repay monies that you have previously borrowed.

 

So how can this be a valid statement to make then?

 

I do not acknowledge any debt to your company or to any company you claim to represent.

[diddydicky]

it is a foolish statement to make and will get you off to a bad start in court (it is usually made to debt collectors rather than to a creditor)

 

it would be valid if made to someone purporting to have bought a debt from a creditor but who has not shown proof of assignment

 

debt collectors "acting on behalf of" creditors are not demanding payment from you to them- but to their client

 

you are challenging the ability of the creditor to use the legal process to enforce the debt- not the existence of the debt itself

 

faced with credit payment slips invoices from traders etc with your signature and your previous acceptance of statements from the creditor and monthly payments you have made- how can you possibly deny the existence of a debt to them?

 

the statement you should be making is

 

it is my opinion that you do not have a properly executed and/or legally enforceable credit card agreement

 

 

 

 

 

 

the opening statement in court should (almost) always be along the lines that you do not dispute that there is a debt owing to the claimant- but you dispute that it is legally enforceable

Edited April 16, 2010 by diddydicky

[bustthematrix]

it was still a debt and the creditor had an obligation to report accurately its conduct

..and therein lies the problem! If there is no TRUE COPY of the agreement, there is no true record of the agreement.

 

Without a true and accurate record how can accurate reports be made? Part of the legal underpinnings of CRAs and the Data Protection Act is that the information they hold and report must be accurate.

 

How can they prove or verify the accuracy if they've 'lost' their records of the exact agreement detailing APR, interest calculation rules etc?

 

It's not a small point and in fact, is better enforced in the US than it here where once a lender can't verify a debt, they have to remove the public debt records (they can retain their own).

 

I think the same thing should be happening here and I believe the law will allow for it if it can be well argued (sorry, I'm not your man for that, not yet anyway).

 

Yes the CRA records are there for the benefit of future lenders and other interested parties but only those who are responsible enough to KEEP PROPER RECORDS should have that privilege, not just anyone with 'money' to lend!

 

That's what this is about at the end of the day. If lenders issued compliant agreements AND kept the originals, none of this would be happening!!!

[bustthematrix]

..If lenders issued compliant agreements AND kept the originals, none of this would be happening!!!

Don't nobody go telling them now will you?