Dissecting the Manchester Test Case....

[antigone1974]

I think you'll find that the meaning of an 'executed agreement' is in s189(1) and that is the starting point before discussions of s61(1) should be addressed.

 

A properly executed agreement is a logical antecedent before other issues become relevant.

 

 

 

m2ae

 

improperly executed is primarily dealt with at s.61, which I dealt with. 189 is definitions and just re-iterates s.61. In any event this is a none point and entirely consistent with what I said. Whether you start at 61 or 189, you get to s.65 and 'enforcement'. Apologies if I came across as sarcastic/p

[antigone1974]

It appears you are rehashing old ground and this issue has already been ruled upon.

 

It's not clear to me what new point you are making, can you elaborate please?

 

It hasn't been ruled upon (unless you mean many many years ago or are just referring to a restatement of principles in a cc judgment). It is such a fundamental point that it does not need to be.

 

The post was a response to many posts above that do not seem to appreciate this point (ie basic contract law and burden of proof). If it is rehersing old ground and everyone already understands this then I apologise but it did not seem to be the case!

[antigone1974]

To be clear, Iredeemably Unenforceable (IU) does not necessarily mean it's lost because 'lost' may one day change to 'found' somewhere down the line.

 

Can we collectively therefore outline here what would be classed as Iredeemable vs Redeemable, for the benefit of all Caggers?

 

Redeemable:

 

1. Loss of agreement

2. Agreement signed by debtor but not by lender and still in Lender's possession

 

Iredeemable:

 

1. No Agreement ever signed

2. Unsigned agreement

3. Agreement not correctly formatted i.e. missing either or all of

- prescribed terms

- signature boxes

- T&Cs

- incorrect figures

4. Lost agreement (accepted by lender as such)

5. Improperly Terminated Agreement (documented in writing)

 

 

Please feedback

 

 

This is incorrect. Irredeemable unenforceabilty only happens where:

 

1) the agreement is entered into before 6 April 2007 AND,

 

2) no agreement was ever signed by the debtor containing a statement of i) the credit limit (or how it will be determined) ii) the interest rate and iii) how repayments are to be made.

 

That is it. All comes from s127 and schedule 6 of the regulations. You need to remember that irredeemable unenforceabilty is not a term coined by the CCA, only used for convenience in later cases. If the original is lost there is always a chance the creditor could reconstitute so is not irredeemable.

 

All my own personal opinion only.

[seriously fed up]

Your point Antigone about McGuff exploring what is enforcement is a good one and shouldnt be ignored. However, part of my original observation - which can easily be found in the McGuff judgement - is that Flaux quite explicitly focuses only on s77-79. The OFT guidance is quite explicitly about s77-79. Waksman seems to be quite clear that s77/78 are primarily about the "information purpose", while s61 is about the proof purpose. Yet there are DCAs producing Waksman style reconstructions and acting as if its game over, since with these two judgements the account has suddenly become enforceable again.

Part of the problem, I think is with the word enforceable which can be stretched from annoying phone calls to getting done over in court. There is also the issue of the distinction between irredeemably unenforceable (the dead parrot) and redeemably unenforceable (the Norwegian blue - any Monty P who dont get this - look it up!).

Another thing that we need to remember is that McGuff was High court not the HoL and there are few strange things in it - for instance this one.

He quotes the case of Dimond v Lovell where judgement says

""The real difficulty, as it seems to me, is that to treat Mrs. Dimond as having been unjustly enriched would be inconsistent with the purpose of section 61(1). Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law: compare Orakpo v. Manson Investments Ltd. [1978] A.C. 95."

This is interesting because Flaux quotes Orakpo, heard under the Money lenders Act 1927, approvingly, when he quotes Lord Diplock's judgement - "Agreements or securities that are unenforceable are not devoid of all legal effect. Payments made voluntarily pursuant to their terms are not recoverable and I regard it as open to question whether the unenforceability of a higher ranking security which is not void ab initio excludes the doctrine of the merger in it of a lower ranking security in respect of the same charge, at any rate when the higher ranking security remains potentially enforceable in the hands of an assignee."

Now if you compare these two, there is a clear difference. Diplock takes the more "restrictive" (lets call it) view that even if a debt is not enforceable - this would be under the Money lenders Act, the defects of which led to the CCA - it does not mean its completely dead (a Norwegian blue). However, 24 years later, again in the House of Lords, there is, it seems to me a clear view that the world has been changed by the CCA. Yet Flaux adopts the older view, seemingly laid aside by the Dimond case, expressed by Diplock.

Moreover, while you are correct that he considers the issue of what enforceable means - and does so at some length - he also states in the section of his judgement where he deals with the impact of Wilson on s77, at para 70, that "However, in my judgment, whatever the true ambit of the judgments in Wilson, the House of Lords was not concerned with redeemable unenforceability under section 77. It seems to me that there is a distinction as a matter of analysis between a case to which section 65(1) applies, where the creditor’s rights are always restricted from the outset (and if Mr Moran’s first proposition were correct, the creditor was deprived of the rights from the outset) and a case such as the present, where (as the claimant accepts) the agreement was valid and fully enforceable until 11 March 2009, when the bank failed to comply with section 77(1) and the agreement will become fully enforceable again, once the signed statement of account required by that sub-section is provided"

So while I would agree with you that he deals at length with what is/is not enforceable this is in the context of when there is/has been a breach of s77. Flaux, to some extent pushes Wilson to the sidelines by arguing that Wilson was considering the CCA through the prysm (think that is the word he uses) of the Human Rights Act, it can be argued that his discussion of what does enforcement mean, while relevant in breaches of s77, has limited relevance under s61.

On the other hand - and this gets us right back to the difficulties of the word "enforce" - there is a very strong point in the McGuff judgement to the effect that if enforcement were to mean anything wider than an action in court - ie from annoying phone calls upwards - then a lender would not be able to apply for an enforcement order under s127 (1) as the application would constitute enforcement (I am assuming he means since the repeal of para 3). Enforcement is just too wid a concept, and to this end I think that CAGers should be encouraged to indicate that they consider their agreement not merely not to be enforceable, but irredeemably unenforceable in the sense used in both the Wilson and Dimond judgements.

Lastly, I do think Antigone you are a bit hard on BTM with your view of what is irredeemable. You are correct to emphasise the date, but your second point, is basically BTM's points 1-3. His point 5 I think also stands up as faulty DN can bring an agreement to an end - just a different route.

Lastly lastly, I dont think your example of theft stands up. No, a thief doesnt have to be caught with the goods on him - there might be no witnesses but there could be finger prints. What will NOT do is merely that the MO looks like a particular criminal who just happens to be unable to furnish a convincing alibi. Ideally there would be a witness, so allow me an analogy. The crime might have been witnessed by the security guard on duty on the evening in question. In court, evidence will have to be given by that security guard and not just another security guard who happens to be around at the time, or who took the witness security guard's job after he left 10 years ago.

Edited June 26, 2010 by seriously fed up

[the_shadow]

SFU...

 

Please dont take this the wrong way but my eyesights not so good and its late...

 

Could you please add some spacing into your posts to help out an old codger who cant cope with massive blocks of text.

 

Cheers

 

S.

[seriously fed up]

better?

[vint1954]

Hi,

There is already a very similar excellent discussion thread started by Vint:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/222663-cras-ocs-credit-ref.html

 

 

Elsa x

The early pages are most relevant and if you want to take it further, the European Directive is covered later on in the thread.

 

With regard to a debt existing, it is easy for a creditor to prove that you used the money, creating a debt.

 

Everything that I have read, and my clear understanding is, that the debt endures, but with an unenforcable agreement, it just cannot be ultimately collected ( or enforced). You then need to wait 6 years for it to wash out.

 

If you argue that a debt does not exist, it will be easily shot down.

[Lord_Alcohol]

The early pages are most relevant and if you want to take it further, the European Directive is covered later on in the thread.

 

With regard to a debt existing, it is easy for a creditor to prove that you used the money, creating a debt.

 

Everything that I have read, and my clear understanding is, that the debt endures, but with an unenforcable agreement, it just cannot be ultimately collected ( or enforced). You then need to wait 6 years for it to wash out.

 

If you argue that a debt does not exist, it will be easily shot down.

 

Vint, I suspect you are right.

 

However, what are your thoughts about the view that a sum loaned under an unenforceable agreement was a 'gift' (and therefore not a 'debt' to be repaid).

 

This was flagged up by Site Team member cerberusalert re a Next CCA;

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/233013-next-credit-agreement-enforceable.html#post2610739

 

Presumably there is reason for this and I have heard it before.

 

Do any substantive arguments actually exist, for either view?

 

LA

[the_shadow]

better?

 

Much better... Thanks.

 

S.

[seriously fed up]

The early pages are most relevant and if you want to take it further, the European Directive is covered later on in the thread.

 

With regard to a debt existing, it is easy for a creditor to prove that you used the money, creating a debt.

 

Everything that I have read, and my clear understanding is, that the debt endures, but with an unenforcable agreement, it just cannot be ultimately collected ( or enforced). You then need to wait 6 years for it to wash out.

 

If you argue that a debt does not exist, it will be easily shot down.

 

 

Vint, your thread on dealing with the CRAs is excellent and will be very useful (for me anyway). Thank you. I think its where we came in on this one, and it does a very good of setting to rest.

 

However re whether a debt exists, I see the point that you make, and tbh, it is certainly the obvious pov, Indeed having spent some time working through Wilson, I came across this (Lord Scott)

 

" 164. Section 65(1) of the 1974 Act says that an "improperly executed regulated agreement is enforceable against the debtor … on an order of the court only". It is to be noted that the agreement is not void or unlawful. It is merely unenforceable except on an order of the court."

 

So clearly - no matter how much we wish it were not so - when a lender offends on s61, it makes the debt irredeemably unenforceable, but it doesnt mean it doesnt exist. Just that they cant get their money. Clearly controlling access to future credit is a means of control they can exercise, but equally clearly, kindly pointed out by you, the DPA offers ways in which this can be addressed

 

However, I do think that one positive outcome from this discussion (which I think started on data processing before getting into the existence of unenforceable debts) is the clear distinction recognised by the courts between the redeemably unenforceable (the Norwegian Blue) and the irredeemably unenforceable (the dead parrot).

 

From what I have read it seems clear that a NB (norwegian blue) because the lender cannot find the document in question can be enforced by the lender. It can be argued that Waksman made life easier for lenders by allowing them to send reconstructions and thus to satisfy s77/78. But if they wish to enforce up to and including trying to secure a court order then at that point they had better have fulfilled their s77/8 obligations.

 

However to secure an enforcement order, having fulfilled their s77/8 obligations, they then come up against s61 and the issue of proof (Waksman's proof purpose) and I think its clear that on its own a reconstruction (allowed by Waksman), even allied to however many pages of statements they want to include, wont get them a court order (or certainly should not do so), given the absence of signatures.

 

The issue then is what their enforcement rights are if the document the lender holds does not satisfy s61? A difficulty here is that only a court can determine that with authority - we can say no its not, they will say yes it is. The issue is however, whether, having met their obligations under s77/78, a lender has the right of enforcement as set out in McGuff and the OFT guidelines, if they are being challenged under s61.

 

This takes us to the McGuff decision. Its made quite clear, quite explicitly by Flaux that he is not taking on s61 - a decision he is encouraged in by the brief for the bank. To that extent it can be argued that his decision is not relevant for any circumstances involving s61. However he does deal with enforcement rights and basically his view is that enforcement is an order in court, and anything before then is not enforcement and is not excluded by the CCA when a lender is in default of s77/78 (which should be much less common since Waksman anyhow).

 

However, even if we accept this (and we dont have much choice do we ), I would say its important for us to point out to lenders when they quote McGuff at us that this decision (and indeed the OFT guidelines) only concerned rights and duties under s77/78 and not s61 which is often where the disputes are, stating that we consider the documents sent to be irredeemably unenforceable (not just unenforceable).

[Lord_Alcohol]

Nice summary SFU. No real arguing with that (apart from mentioning that antigone1974 is right in his point about the date of the agreement).

 

In the case of the dead parrot (beautiful plumage, by the way), what would be the merits of claiming that the agreement was entered into under a mistake of law, and that "true" rescission should apply (ie, that both parties refund to each other monies taken, placing themselves at a point before the agreement was started)?

 

Clearly, this is only beneficial (for us) when more (or the same) has been input than output, but it seems equitable where there is a wholly non-compliant agreement or the OC is completely unable to prove that a compliant one ever existed.

 

That would cure the problem of adverse data too.

 

I know this has been raised before, but I can't find the posts.

 

LA

[seriously fed up]

My problem with that LA in proving an agreement is non-compliant, is that I suspect that would require one of us to take them to court and thus the burden of proof would lie on us. That offends my naturally pessemistic nature, as I feel its better to leave them alone if possible (purely personal view LA - matter of judgement).

But even then you would come against Scott's view that because the agreement is unenforceable, it doesnt mean other rights are extinguished.

Vint's thread looks an interesting way of dealing with the CRAs.

[seriously fed up]

Btw, it was, I think the Norwegian Blue (or the redeemably enforceable agreement) that had the beautiful plummage. I suspect its a bit unreasonable to expect Monty P to have considered this at the time.

[antigone1974]

Btw, it was, I think the Norwegian Blue (or the redeemably enforceable agreement) that had the beautiful plummage. I suspect its a bit unreasonable to expect Monty P to have considered this at the time.

 

Sfu- I agree mcguffick focuses on 77/79 and that observations on wider points may be obiter. However, in relation to the meaning of enforcement it would be nonsensical for a word to have one meaning in part of a statute and another meaning in another part.

 

The theft analogy isn't perfect but the point is this: the creditor has to prove their case on the balance of probabilities, there are no restrictionson how they might of might not satisfy this test.

 

Also, and I make this point strongly. A faulty default notice has no effect. It does not end the agreement and does not make the agreement iredeemably unenforceable. This I'd s complete myth which I'd seen widely on this site. Even if the contract were brought to an end, the debt doesn't disappear. If any one disagrees then please provide dome actual authority- there us none.

 

I did not mean to be disparaging to the other poster. He was actually very close, but not quite correct.

[Lord_Alcohol]

Btw, it was, I think the Norwegian Blue (or the redeemably enforceable agreement) that had the beautiful plummage. I suspect its a bit unreasonable to expect Monty P to have considered this at the time.

 

A long time ago, but I thought that the Norwegian Blue was the dead parrot!

 

LA

[Lord_Alcohol]

Also, and I make this point strongly. A faulty default notice has no effect. It does not end the agreement and does not make the agreement iredeemably unenforceable. This I'd s complete myth which I'd seen widely on this site. Even if the contract were brought to an end, the debt doesn't disappear. If any one disagrees then please provide dome actual authority- there us none.

 

Surely what's been said is that the OC attempts to terminate the account when no remedy is offered after serving of a defective DN, and the debtor accepts this in order to make the termination 'lawful'?

 

But as s88 was not properly complied with, s87(1)(b) kicks in and the OC may not claim sums unpaid. The debt cannot be enforced.

 

Have we all got it wrong?

 

LA

[seriously fed up]

See my comments in red

 

 

Sfu- I agree mcguffick focuses on 77/79 and that observations on wider points may be obiter. However, in relation to the meaning of enforcement it would be nonsensical for a word to have one meaning in part of a statute and another meaning in another part. Yes I see your point, but the fact is that Faux's analysis is for an account that might be (we cant know till we find it) compliant. If an agreement doesnt meet the requirements of s61 then we know its not compliant. Its really a question of what a creditor can do to chase up a non-compliant account. Certainly Scott's judgement tends to make me think that they can carry on with other forms of enforcement even though the legal process is closed off to them. But as Flaux points out, opinions on that case varied.

 

The theft analogy isn't perfect but the point is this: the creditor has to prove their case on the balance of probabilities, there are no restrictionson how they might of might not satisfy this test. well actually there are. For instance, a lender might put up what is basically an application form, but with no copy of the t&cs because they photocopied only one side. So they put up as a witness someone from the bank to testify that with bank procedures this type of form would have the T&Cs on the other side - that was procedure. The problems with this are various. For instance, the account has to be older than 4 years (2006 because it was only then that 127 -3 was repealed) - often we can be dealing with accounts that are 10-15 years old. What are the chances of the bank getting someone who was actually there at that time? Even then, how good is your memory from 10 years ago? And if you are a bank employee, how unbiased a witness are you in fact? The problem that the banks have is essentially of their own making. In the rush to get people signed up to their cards they short circuited the procedures that should have been followed - for instance its arguable that s62 requires a copy of the agreement signed by the lender to be sent to the borrower and THEN the card is sent out - they simply missed that out. But they also wanted to cut their costs, so to limit storage costs, the vast amount of paper that people sent in as application forms was microfiched - and even then only the sig page with no prescribed terms - and the original destroyed. Sod them!

 

Also, and I make this point strongly. A faulty default notice has no effect. It does not end the agreement and does not make the agreement iredeemably unenforceable. This I'd s complete myth which I'd seen widely on this site. Even if the contract were brought to an end, the debt doesn't disappear. If any one disagrees then please provide dome actual authority- there us none.

This isnt really an area that I have done much in, but if you look at s87 of the CCA, its quite clear that to be able to terminate an account the lender has first to issue a compliant DN (eg the borrower is given enough time to make good the default). ONLY then - if the default is not remedied - can the lender issue a termination notice. Now, if the DN is not compliant, BUT the termination notice follows, there has to be consequences for the lender as he has acted beyond the limits of his authority under the CCA. So I would agree that a defective DN ON ITS OWN has little effect. For instance if a non-compliant DN is sent, followed by a compliant one, followed by termination then that is ok. But what they cannot do is issue a defective DN and then terminate on the back of that. That, according to the wisdom of those who know more about this than me, is unlawful rescission of contract, and its not just this forum that thinks so - there are others, but they dont like using urls to there from here - but this one might work Claiming damages for wrongful default. If you think this is wrong, then please feel free to elaborate on why. If you are right its better for us all to know - and vice versa. Or it might serve to strengthen both perspectives.

 

I did not mean to be disparaging to the other poster. He was actually very close, but not quite correct.

[means2anend]

improperly executed is primarily dealt with at s.61, which I dealt with. 189 is definitions and just re-iterates s.61. In any event this is a none point and entirely consistent with what I said. Whether you start at 61 or 189, you get to s.65 and 'enforcement'. Apologies if I came across as sarcastic/p

 

.

 

I have looked again and the definition of an ''executed agreement'' is in s189(1) but further on down..

 

Difference between s61 and s189 is that although they both mention signatures should be properly signed there is no mention of Prescribed Terms in s189(1) although there is a definition of ''prescribed''

 

Hope that clarifies the matter.

 

m2ae

Edited June 26, 2010 by means2anend

[bustthematrix]

Comments below

This is incorrect. not wholly, only partly Irredeemable unenforceabilty only happens where:

 

1) the agreement is entered into before 6 April 2007 AND,

Thanks for highlighting this, it's certainly true but I missed it off the list

 

2) no agreement was ever signed by the debtor containing a statement of i) the credit limit (or how it will be determined) ii) the interest rate and iii) how repayments are to be made.

...errr, same as my points? My purpose here was to give people something to edit and critique as they saw fit, not to be dogmatic

 

That is it. All comes from s127 and schedule 6 of the regulations. You need to remember that irredeemable unenforceabilty is not a term coined by the CCA, only used for convenience in later cases. Yes, never said it was defined under the CCA. Just trying to clarify what IU and RU specifically mean for all readers so it's not assumed as understood by all - cos it certainly isn't.

If the original is lost there is always a chance the creditor could reconstitute so is not irredeemable. No. Only for S77-9 purposes. A lost original can only ever become a redeemable agreement if it's found. Reconstitutions and reconstructions cannot satisfy the proof purpose without the debtor's consent and additional supporting evidence from the OC. They will fail if properly put to the strict proof test.

We've seen this countless times in numerous cases where the OC/DCA brings action. Desperately, they press for judgement on the back of non-compliant copies and recons, and never win where a proper defence is presented. Not because the defendants are particularly clever, but because they face the same unsurmountable legal hurdle. They are not supposed to win with their non-compliant documentation.

 

All my own personal opinion only

Always. It's helpful to remain constructive even when disagreeing though.

[bustthematrix]

See below

Also, and I make this point strongly. A faulty default notice has no effect. It does not end the agreement

I would humbly suggest you have a thorough read of these boards in relation to faulty Default Norices and account terminations. You just may be persuaded otherwise.

and does not make the agreement iredeemably unenforceable.

This may/may not be true and is one of the reasons I added it to the list, so others could comment.

 

This I'd s complete myth which I'd seen widely on this site. Even if the contract were brought to an end, the debt doesn't disappear. If any one disagrees then please provide dome actual authority- there us none.

I keep hearing statements about the 'debt doesn't disappear' etc. So far, to my knowledge, that has not been the debate. Nor is it the argument put forward in defence against claims etc. The debate has been about rights and obligations of debtors vs creditors UNDER THE CONSUMER CREDIT ACT and the DATA PROTECTION ACT.

I did not mean to be disparaging to the other poster. He was actually very close, but not quite correct. Remains to be seen on further aspects, eh?

Edited June 26, 2010 by bustthematrix

[vint1954]

Vint, I suspect you are right.

 

However, what are your thoughts about the view that a sum loaned under an unenforceable agreement was a 'gift' (and therefore not a 'debt' to be repaid).

 

This was flagged up by Site Team member cerberusalert re a Next CCA;

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/233013-next-credit-agreement-enforceable.html#post2610739

 

Presumably there is reason for this and I have heard it before.

 

Do any substantive arguments actually exist, for either view?

 

LA

There was indeed a case where a higher judge in summing up, mentioned that if the creditor lent money without an agreement in place to repay it, then it must be considered as a gift. Also Benion took that stance. If you search his website, you may turn that up.

 

I think in the reality of a county court, you would have trouble explaining that the money loaned to you was a gift.

 

Vint

[vint1954]

Sfu- I agree mcguffick focuses on 77/79 and that observations on wider points may be obiter. However, in relation to the meaning of enforcement it would be nonsensical for a word to have one meaning in part of a statute and another meaning in another part.

 

The theft analogy isn't perfect but the point is this: the creditor has to prove their case on the balance of probabilities, there are no restrictionson how they might of might not satisfy this test.

 

Also, and I make this point strongly. A faulty default notice has no effect. It does not end the agreement and does not make the agreement iredeemably unenforceable. This I'd s complete myth which I'd seen widely on this site. Even if the contract were brought to an end, the debt doesn't disappear. If any one disagrees then please provide dome actual authority- there us none.

 

I did not mean to be disparaging to the other poster. He was actually very close, but not quite correct.

A DN does not bring an agreement to an end on it's own.

 

The issueing of a non complient DN, has huge ramifications on the creditor if he then goes on to act post DN. By doing so, he is claiming the benefit of s87 and to do so, he must issue a complient DN. End of storey. He is allowed to terminate the agreement and demand his money back.

 

With a non complient DN followed by action on behalf of the creditor, you then move out of the CCA into contract and common law.

[paulwlton]

A DN does not bring an agreement to an end on it's own.

 

The issueing of a non complient DN, has huge ramifications on the creditor if he then goes on to act post DN. By doing so, he is claiming the benefit of s87 and to do so, he must issue a complient DN. End of storey. He is allowed to terminate the agreement and demand his money back.

 

With a non complient DN followed by action on behalf of the creditor, you then move out of the CCA into contract and common law.

 

Re: defective default notice and Notice of assignment

 

The claimant issues proceedings after forwarding a defective default notice.

 

The Defendant wins on this issue and the court allows the Claimant the amount of arrears up to the date of claim ONLY as appears to be the case.

 

Now, the outstanding balance hasn't been ruled unenforceable it, continues to exist and the creditor continues to send out arrears notices post the court case.

 

Questions arise:

 

Has the creditor forfeited legal rights to issue further proceedings if the borrower refuses to maintain payments?

 

Would the creditor first need to seek relief from sanctions (application to the court to bring further action on same)

 

Paul

[RobinWayRobinme]

If you have a read of the sticky A tale of a dodgy DN by surfaceagentx20 it should answer most questions raised earlier here re DN's

R

[bustthematrix]

If you have a read of the sticky A tale of a dodgy DN by surfaceagentx20 it should answer most questions raised earlier here re DN's

R

Correct, it will also help to keep the topic focused so we don't stray too much...

 

The point being that we are focusing on the criteria for Redeemable vs Iredeemable Enforceability as per a CCA if executed prior to 6th April 07. My suggestion concerning adding non-compliant Default & Termination Notices to the list is only partly relevant in that:-

 

If a lender incorrectly terminates an account based on a non-compliant Default Notice, there is every chance that the principal amount 'owed' is no longer collectible under the CCA and only the claimed arrears may be collectible, under the CCA. The following supports this:

 

EFFECT OF FAILURE TO DEFAULT AND TERMINATE AN AGREEMENT CORRECTLY

 

Failure of a Default or Termination Notice to be accurate not only invalidates such Notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 ), but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Claimant a claim for damages in the sum of £1,000 (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

A post April 6th 2007 agreement, that has been incorrectly terminated under the CCA would still benefit from the DN/TN situation above even if the agreement is normally enforceable (properly executed).