Dissecting the Manchester Test Case....

[Jeff2000]

So what was the intention of the original 1974 act when it said (paraphrasing) 'You cannot enforce if you are in breach of s78'.

 

Clearly it wasn't so a Judge could say "only I can enforce, so the claimant can do whatever he likes", which simply renders this portion of the Act meaningless.

 

The Act must have had it in mind to prevent the lender / credit giver from doing something if he was in breach of s78.

 

 

My thoughts exactly.

 

Why would an act of parliament state that a "creditor" cannot "enforce" if he is in breach of a certain section, when only a judge could ever enforce in the first place?

 

In other words, if a judge is the only one able to enforce, then the creditor loses nothing by being in breach!

 

 

Jeff.

[dp77]

What level of court did Judge Flaux give this decision in (saying starting court action was only a "step toward enforcement", anyone know?

 

Has Carey done for this argument, or was Carey purely concerned with whether a s78 breach made an agreement terminally unenforceable? To me (total layman) that seems a very optimistic approach, did they really expect that to succeed?

 

Would it not have been better to argue that the creditor did not have the right to start court action until he complied with the s77/78/79 request - focusing on preventing enforcement, which after all is what the Act says.

 

Apologies if this is out of the loop, I haven't read all 118 pages of this thread and I must admit I'm not sure I fully understand Carey.

[brooooooooooce]

My thoughts exactly.

 

Why would an act of parliament state that a "creditor" cannot "enforce" if he is in breach of a certain section, when only a judge could ever enforce in the first place?

 

In other words, if a judge is the only one able to enforce, then the creditor loses nothing by being in breach!

 

 

Jeff.

 

A creditor can not enforce whilst in default of a s.78 request. If they applied to the court for an order granting enforcement ie a ccj the debtor need only point out to the judge the creditors failure to comply with the s78 request and the judge is not able to grant enforcement. The same applies to a beach of s61 ie prescribed terms missing and s127(3). Although the s.78 breach is capable of rectification by virtue of the creditor complying with s.78.

[diddydicky]

I can never see any rational thinking behind that one, but Judges sometimes live in a world with Tangerine Trees and Marmalade Sky's.

 

If you go to court, you are intending to enforce. No arguments.

 

fully agree

 

not only that- taking an action to court with no intention of proceeding with the case beyond issuing the claim is IMO a deliberate attempt to abuse the system

[bustthematrix]

fully agree

not only that- taking an action to court with no intention of proceeding with the case beyond issuing the claim is IMO a deliberate attempt to abuse the system

 

Too right. These judges are just trying to earn fees for the courts , by encouraging claimants who have no prospect of winning to take their chances.

 

Well actually, I guess they do have a chance of winning, as long as the defendant doesn't know their rights, isn't a Caggite etc...

[brooooooooooce]

Just had a lengthy personalised letter from MBNA. Basically I s.78'd them in July last year and have had nothing - like pulling teeth. In response to a question about why I've not had a response they write:

 

'I would clarify in respect of the accounts that you have not had a response under s78; we would refer you to the High Court judgment of McGuffick v RBS in which Flaux held that the following are not enforcement: i) demanding payment, ii) issuing a DN, iii) threatening legal action, iv) instructing a DCA and v) bringing proceedings. As such even where a S78 request has not been complied with these activities can be properly undertaken.'

 

Accepted. The bit I don't get is why, after 9 1/2 months I have had no reply to my s.78 request? No original CCA with signature. No BS reconstruction. Just 2 fingers up firmly to the CCA 1974 and bugger all else. What game are they up to? I have two accounts, one from 1989 and one from 1994. Both originally with Building Societies that became banks and were taken over by MBNA. Clearly my hope is that they have no paperwork but why don't they do what everyone else does and create it?

[dp77]

 

'I would clarify in respect of the accounts that you have not had a response under s78; we would refer you to the High Court judgment of McGuffick v RBS in which Flaux held that the following are not enforcement: i) demanding payment, ii) issuing a DN, iii) threatening legal action, iv) instructing a DCA and v) bringing proceedings. As such even where a S78 request has not been complied with these activities can be properly undertaken.'

 

If true then a s78 request is meaningless, it can be ignored without consequence. Technically I suppose the Judge cannot enforce if the creditor is still in breach once the case comes before court, but it seems a high percentage of DJ's are determined to side with the creditor whatever the circumstances.

 

If you want the letter of the law applied more evenly you need to go to appeal, which is £10k minimum.

 

As for why MBNA won't recreate your agreement - do you know if its a decision on your case alone, or generally do they not supply agreements? It may just be policy. Given that they are going with the Flaux they may feel the only time they are obliged to produce your agreement (recon or otherwise) is in court.

 

I know that flouts OFT guidelines and whatever else but that doesn't seem to bother creditors or judges as much as it should.

[babybear39]

This is a very good reason why debtors should use CPR!

[brooooooooooce]

If true then a s78 request is meaningless, it can be ignored without consequence. Technically I suppose the Judge cannot enforce if the creditor is still in breach once the case comes before court, but it seems a high percentage of DJ's are determined to side with the creditor whatever the circumstances.

 

If you want the letter of the law applied more evenly you need to go to appeal, which is £10k minimum.

 

As for why MBNA won't recreate your agreement - do you know if its a decision on your case alone, or generally do they not supply agreements? It may just be policy. Given that they are going with the Flaux they may feel the only time they are obliged to produce your agreement (recon or otherwise) is in court.

 

I know that flouts OFT guidelines and whatever else but that doesn't seem to bother creditors or judges as much as it should.

 

No idea what MBNA are up to generally. Of all my creditors they are the only ones who have produced nothing. Although they did admit on one of my accounts (in response to a SAR) that they could not provide a copy of the agreement and blamed the original building society. Surely a lender would not be stupid enough to go through all this c**p, including taking you to court, if the whole dispute could have been resolved very easily by them producing either a signed agreement or some response to a s78 request. But as my experience grows it seems anything is possible!

[brooooooooooce]

This is a very good reason why debtors should use CPR!

 

At what point would you use CPR? After your creditor issues or as a pre-emptive (is it under 31.16 I get confused with all the numbers) prior to issuing proceedings.

[dp77]

At what point would you use CPR? After your creditor issues or as a pre-emptive (is it under 31.16 I get confused with all the numbers) prior to issuing proceedings.

 

Once the creditor raises the possibility of legal proceedings you can use the CPR. There is a very good thread here -http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html#post1868913

 

What I'm not sure about is how robust the CPR are when it comes to court action, i.e. whether a creditor breaching them is likely to influence a Judge very much.

[babybear39]

Not sure of the CPR part lol, but it would be as a direct reaction to threatened or the percieved threat of litigation for which the account holder MUST keep any paperwork to back up this course of action. best really if the account holder requested advice here first

[babybear39]

Once the creditor raises the possibility of legal proceedings you can use the CPR. There is a very good thread here -http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html#post1868913

 

What I'm not sure about is how robust the CPR are when it comes to court action, i.e. whether a creditor breaching them is likely to influence a Judge very much.

 

The judge doesn't have a choice.

[bustthematrix]

At what point would you use CPR? After your creditor issues or as a pre-emptive (is it under 31.16 I get confused with all the numbers) prior to issuing proceedings.

Hi Brooce

 

Have a look at this excellent thread on the subject.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

[bustthematrix]

Just had a lengthy personalised letter from MBNA. Basically I s.78'd them in July last year and have had nothing - like pulling teeth. In response to a question about why I've not had a response they write:

 

'I would clarify in respect of the accounts that you have not had a response under s78; we would refer you to the High Court judgment of McGuffick v RBS in which Flaux held that the following are not enforcement: i) demanding payment, ii) issuing a DN, iii) threatening legal action, iv) instructing a DCA and v) bringing proceedings. As such even where a S78 request has not been complied with these activities can be properly undertaken.'

 

Accepted. The bit I don't get is why, after 9 1/2 months I have had no reply to my s.78 request? No original CCA with signature. No BS reconstruction. Just 2 fingers up firmly to the CCA 1974 and bugger all else. What game are they up to? I have two accounts, one from 1989 and one from 1994. Both originally with Building Societies that became banks and were taken over by MBNA. Clearly my hope is that they have no paperwork but why don't they do what everyone else does and create it?

 

This is where the OFT's guidelines and other protections within the CCA 1974 should be raised. If an OC cannot or refuses to validate the debt, there are limits to what they can do! Whilst in the strict legal sense, all the actions listed above may not constitute 'enforcement', they do constitute harrasment, violations of human rights etc. Look here for some ideas:-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/243236-account-too-old-cca.html

 

They can't just keep banging on at you whilst their breach remains, especially if the account is pre-April 2007.

[brooooooooooce]

Hi Brooce

 

Have a look at this excellent thread on the subject.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

Thanks for that. You're right, excellent thread!

[babybear39]

Ooh! It was simpler before the CPUTR

[brooooooooooce]

Ooh! It was simpler before the CPUTR

 

English?

[BeauBrummie]

English?

 

It was easier before the Consumer Protection against Unfair Trading Regulations - Came into force on 1 April 2008 I believe.

 

Beau

[babybear39]

Before the CPUTR CCA timescales were 12 + 2 (at which point the account enters a dispute situation as it does now) PLUS a further 30 days. If the DCA/OC failed to furnish they were commiting a criminal offence. This was repealed by the CPUTR 2008.

[babybear39]

Also note that this is not retrospective!

[brooooooooooce]

Before the CPUTR CCA timescales were 12 + 2 (at which point the account enters a dispute situation as it does now) PLUS a further 30 days. If the DCA/OC failed to furnish they were commiting a criminal offence. This was repealed by the CPUTR 2008.

 

Thanks for that! There are so many abbreviations flying about CPUTR, CPR, CCA. Just a bit confused about what to do with MBNA - I want to reply to their letter because there are other issues in it but not entirely sure what to say about their continued failure (9 1/2 months) to provide my s78 stuff.

[babybear39]

MBNA, not dealt with them personally but I can take an educated guess what you MIGHT like to do with them

[bustthematrix]

Before the CPUTR CCA timescales were 12 + 2 (at which point the account enters a dispute situation as it does now) PLUS a further 30 days. If the DCA/OC failed to furnish they were commiting a criminal offence. This was repealed by the CPUTR 2008.

No longer a criminal offence but it's still a breach of the Act and gives rise to unenforceability doesn't it?

 

When you say it's not retrospective, do you mean that for agreements entered into prior to April 2007, where the lender fails to furnish within the 12+2+30 (=44) day timescale IT IS still a criminal offence?

[babybear39]

No longer a criminal offence but it's still a breach of the Act and gives rise to unenforceability doesn't it?

 

When you say it's not retrospective, do you mean that for agreements entered into prior to April 2007, where the lender fails to furnish within the 12+2+30 (=44) day timescale IT IS still a criminal offence?

 

I mean that the CPUTR got rid of the crimminal offence for good. It cannot be applied now to any case of non compliance.