Unenforceability Evolution 2010

[Peterbard]

Hi

I decided to start a new thread on the CCA(oh no not another one) as the heading suggests the idea is to highlights items that are being unearthed or clarified or sometimes even altered during the process of workings of our judicial system.

As the Darwinian theme suggests it is debatable that the regulations most fit to survive do so the others just get watered down and fade away(section78)

Common law is coming down in a big way on the CCA and is altering our perceived rights, as well as real effects on our protection.

In many cases it is just clarifying what we already new and various agencies were misrepresenting in order to make money out the unwary.

In other cases it seems common law seems to be patching up loopholes created by the sometimes ill fitting Statutory Instruments

I know there are other threads concentrating on the Manchester ruling and this one will also begin by examining various aspects of it, but I feel it is an extension of my enforceability thread penned many moons ago and is probably now due an overhaul.

Besides I intend to go well beyond the remit of that particular judgment, there are others to come and more issues to be raised I am sure,

There are also many existing issues that could in my view do with an airing

 

Best regards

peter

[the_shadow]

Subbing with interest.

 

S.

[Old Cogger]

subbing also

[AA99]

Subbing:cool:

[lochlisa]

Peter,

 

what an excellent idea to start a separate thread.

 

As a total thicko would it be useful to have some bullet points detailing what has and what has not happened?

 

In my own case BC have not supplied an executed agreement, given their Final Response and its now in the hands of FOS.

 

MBNA have said the Manchester case shows they do not need to provide an executed agreement in their Final Response and I should just pay up - again this is with the FOS.

 

Please correct me if I am wrong but it is my understanding that an Executed agreement is still required if cases go to court for CCJ's.

 

I am sure many people still have these questions after the conflicting reports being made about the 'Manchester' case.

 

It is important to me to find out what my rights are and to get things sorted one way or another as this is going on and on and I am beginning to give up, which I am sure is understandable.

 

Sorry if I have waffled but this forum is very important to me and others and I just wanted to thank you for what you are doing and to suggest a few ideas for helping the forum users.

 

very best wishes,

 

Lisa

[Peterbard]

Peter,

 

what an excellent idea to start a separate thread.

 

As a total thicko would it be useful to have some bullet points detailing what has and what has not happened?

 

In my own case BC have not supplied an executed agreement, given their Final Response and its now in the hands of FOS.

 

MBNA have said the Manchester case shows they do not need to provide an executed agreement in their Final Response and I should just pay up - again this is with the FOS.

 

Please correct me if I am wrong but it is my understanding that an Executed agreement is still required if cases go to court for CCJ's.

 

I am sure many people still have these questions after the conflicting reports being made about the 'Manchester' case.

 

It is important to me to find out what my rights are and to get things sorted one way or another as this is going on and on and I am beginning to give up, which I am sure is understandable.

 

Sorry if I have waffled but this forum is very important to me and others and I just wanted to thank you for what you are doing and to suggest a few ideas for helping the forum users.

 

very best wishes,

 

Lisa

Hi

Lets try and get to the facts there are plenty of other threads where people can air their righteous indignation about the unfairness of the system and the legislation lets see if we can divine what does actually represent an unenforceable agreement at this moment in time.

First I think we should draw a line between an agreement that is unenforceable and an agreement that the creditor will probably not bother to try to enforce.

Many tactics for thwarting the creditors have been penned on here and a lot of them have been effective but not perhaps for the reason you think.

Section 65 is a great friend of the consumer in that it is a means for us to turn the tables on the lender and say, hang on a minute before you take me to court lets make sure you have given me all the information and protection you should have done.

If you as a lender default on your agreement you can call on section 65 and rightly of wrongly you get a stay of execution, Sometimes even if the creditor is in the right it is not worth his time pursuing the debt and the debtor gets a win by default.

Nothing wrong with that you might say, and you may be right.

But I fear those days are gone or at least are in there dying throws Whilst just a relatively small number of debtors can get away with the above when this practice starts becoming an industry and the so called credit management firms move in then the courts have to call a halt to these mostly unsubstantiated claims. Hence the current common law cull of previously held routs to unenforceability.

Don’t worry all the questions will be answered I am sure in the next few posts

So to Manchester

[Peterbard]

Thought the thing to do is make some statements and see what happens.

Please feel free to argue or disagree. If there is no response I will assume I am correct in every way(which of course I am) and go to the next point.

 

However the first thing we must agree in is what exactly enforcement is as at the end it the day it is what we are trying to avoid.

 

So here is the first statements

 

Enforcement is the process that the court employs in order to direct the actions of the parties involved in the litigation.

 

Enforcement starts in the court room and takes place after the judgment..

 

A creditor or debtor/lender commencing proceeding on an agreement before court action is not enforcement.

 

Enforceable only by an order of the court,(section 65)

Means that the normal enforcement process is interrupted whilst the court examines the terms and structure of the agreement to ensure it conforms to the consumer credit act, it then evaluates the amount of prejudice caused by any inconsistencies, and in accordance with this evaluation makes an order to enforce,

Through section 65 and 127 the court has the power to restrict enforcement the ultimate restriction for severe none conformity is that the court may not enforce at all..

 

Creditor may not enforce the agreement(section 77-79)

The agreement could not be enforced in the normal manner following a breach until the breach is cured there is no sanction against the creditor for the period of breach.

 

Unenforceable

The court has no power to enforce however this does not mean the debt is wiped out the debt still exists and the creditor is fully entitled to seek repayment short of harassment.

 

Arguments against please if any

 

 

Best regards

 

Peter

[haggis1984]

subbin

[davefirewalker]

Hi Peter...

 

I have always had a problem with "enforce" and the judges slant on it....

 

To me there are at least two types of "enforce" with relation to credit agreements. One type of enforce could be to enforce their rights under the agreement........ie default notices, and enforcing various terms within the agreement, defaults....not necessarily a on cca.....so no need to go to court yet.

 

The second type of ENFORCE is using the court system to make sure you get your money or goods back.

 

even on default notices it says...." if you remedy this breach by XXX then no FURTHER enforcement action will be taken" (paraphrasing)

 

no "further" enforcement action will be taken must mean that some "enforcement " action must have already been taken in some way. I believe that it is the enforcement of their rights under the contract and is NOT yet "ENFORCEMENT" by the courts.

 

So by this I feel that the first three statements are wrong (logically)

 

However.....due to that d**k Rankine, and a few other poorly chosen cases, we are now in the position where a judge has basically ruled that enforcement starts AFTER judgement.....I still cant see how that works. I understand what they are trying to do.....and can see the advantages of that ruling for them, but it is wrong !!

 

Me saying it is wrong though will not fix it......

 

rgds

 

Dave

[summerbreeze]

Looks like a very interesting thread ...subbing

[lookinforinfo]

Peter, I have already aired my views on the" Manchester" thread about some of Judge Waxman's conclusions and I feel that he got totally lost when it came to his deliberations on enforcement.

 

Where he went astray was when he was dealt a googly by the bankers barristers. There was a "conundrum" between a court deciding whether a S65 incorrectly executed agreement could be enforceable by order of the court and where a financial concern had defaulted on s77-79 and was unable to enforce while the default continued.

Most people with a brain could easily discern the two quite distinct different situations.

!] It was obvious that an improperly executed agreement could only be adjudged as to its enforceability by a Court.

2] that where a valid executed agreement could not be produced, the case could not be taken to Court. See Wilson v Hurstanger et al.

 

I agree with davefirewalker. If you receive a Default Notice stating that it is sent in accordance with the CCA littered with capital letters and advising you to take legal advice since you are being subjected to a demand to repay a certain sum of money within 14 days of receipt of the notice, or run the risk of further legal action, how can that be anything but enforcement.

In a similar way, a DCA arriving at your door demanding payment will appear enforcement to the vast majority of people subjected to such treatment.

 

It will be interesting to see what the OFT say when they finally stop dithering and decide how they interpret enforcement after a s.77-79 default.

After all, at the moment it appears that a creditor can take an alleged debtor to Court while in default and at the same time the OFT are saying that to do so may call into question that companies ability to retain its

Consumer Credit Licence.

Are the OFT, who are not renowned for their bottle, really going to remove someone's licence knowing that they face being taken to Court by the company as they can say that they have acted within Judge Waxmans law and therefore cannot have acted unfairly.

[Peterbard]

Hi Dave and L.

I agree with you both when I first heard the definition of enforce in the McGuffin verdict I was to say the least somewhat taken aback.

I went through the CCA to find instances that could disprove this. I to came across the ones mentioned. And a few others ,the section referring to repossession of vehicles under hire, springs to mind could you really take reposition of a car due to a default under the one third rule as commencement of proceedings, proceeding to what? no it is enforcement and without any court being involved at all ,there is no further action to proceed to.

I also agree that an agreement cannot or should not be taken to court if it is not in physical existence but that is not the same as an existing agreement in breach of section 127(3).

The act says that an agreement for consumer credit must be reduced to writing that to me means the document must exist even before the issue of execution is addressed

All this does not alter the fact that the CCA does use the term proceedings and more importantly this definition of ENFORCE has been made and verified.

We I am afraid are going to have to accept it and work with it.

We can cry foul all we like it wont make a ha’penny worth of difference.

The definition is the one the courts accept

I want to try and keep the issues on this thread as clear as possible, and if the issue here is, “what is enforcement in the CCA” I am afraid it is the one above.

Best regard

Peter

[Peterbard]

Hi L

Regarding the section77=79 issue I wanted to do this one issue at a time to prevent confusion but briefly.

I believe that the OFT have stopped dithering about section77- requests some time ago.

They are pretty much in accordance with the courts now in that the request is just that,, a request for information.

Even if in breach it does not warrant any major sanction despite what it may say in the act or regulations.

As far as unenforceability or unfair relationships is concerned it just has no prospects of success.

But more on this latter.

Peter

[gh2008]

IMHO there is a distinction between 'enforcement of the terms and conditions of an agreement' and 'enforcement of a court judgement'.

 

Now the former can happen without any intervention of the court. A debtor defaults, claimant serves a Default Notice to enforce the T&Cs (e.g. making repayments on time). If the debtor does comply with the DN then the creditor has enforced the T&Cs of the agreement. Hence the wording of the DN.

If it is not enforcement then what is it, what wording is used in the Act that describes the creditor 'compelling observance of' the T&Cs of the agreement.

 

The meaning of the latter (enforcement of a judgement) as I'm sure many of us know about is, IMHO *totally* separate to the enforcement of an agreement.

Edited January 25, 2010 by gh2008
added the e.g.

[AA99]

I think this post/thread says a lot!

 

http://www.consumeractiongroup.co.uk/forum/general/243968-way-forward.html

[Peterbard]

IMHO there is a distinction between 'enforcement of the terms and conditions of an agreement' and 'enforcement of a court judgement'.

 

Now the former can happen without any intervention of the court. A debtor defaults, claimant serves a Default Notice to enforce the T&Cs (e.g. making repayments on time). If the debtor does comply with the DN then the creditor has enforced the T&Cs of the agreement. Hence the wording of the DN.

If it is not enforcement then what is it, what wording is used in the Act that describes the creditor 'compelling observance of' the T&Cs of the agreement.

 

The meaning of the latter (enforcement of a judgement) as I'm sure many of us know about is, IMHO *totally* separate to the enforcement of an agreement.

 

 

Hi

 

No sorry lets be clear enforcement is enforcement.(in its legal sense) It can only take place after a jujdjement and in court.

 

Best regards

Peter

[Peterbard]

I think this post/thread says a lot!

 

http://www.consumeractiongroup.co.uk/forum/general/243968-way-forward.html

 

Hi

 

Yes it says a lot about the bank charges issue

 

Peter

[andrew1]

I think this post/thread says a lot!

 

http://www.consumeractiongroup.co.uk/forum/general/243968-way-forward.html

 

It does, but nothing to do with Unenforceable agreements

[seriously fed up]

Hi Peter...

 

I have always had a problem with "enforce" and the judges slant on it....

 

To me there are at least two types of "enforce" with relation to credit agreements. One type of enforce could be to enforce their rights under the agreement........ie default notices, and enforcing various terms within the agreement, defaults....not necessarily a on cca.....so no need to go to court yet.

 

The second type of ENFORCE is using the court system to make sure you get your money or goods back.

 

even on default notices it says...." if you remedy this breach by XXX then no FURTHER enforcement action will be taken" (paraphrasing)

 

no "further" enforcement action will be taken must mean that some "enforcement " action must have already been taken in some way. I believe that it is the enforcement of their rights under the contract and is NOT yet "ENFORCEMENT" by the courts.

 

So by this I feel that the first three statements are wrong (logically)

 

However.....due to that d**k Rankine, and a few other poorly chosen cases, we are now in the position where a judge has basically ruled that enforcement starts AFTER judgement.....I still cant see how that works. I understand what they are trying to do.....and can see the advantages of that ruling for them, but it is wrong !!

 

Me saying it is wrong though will not fix it......

 

rgds

 

Dave

 

I would agree with Mr Firewalker on this one. Clearly court action is a form of enforcement, but I think that is LEGAL enforcement. If we dont call the letters/ phone calls/ registration of defaults/ assorted threats enforcement, what do we call it?

[AA99]

I would agree with Mr Firewalker on this one. Clearly court action is a form of enforcement, but I think that is LEGAL enforcement. If we dont call the letters/ phone calls/ registration of defaults/ assorted threats enforcement, what do we call it?

 

Thank you, seriously fed up:cool: Although there seems to be an awful lot of law thrown around here, there seems to be one law for them, and one law for us :?

[gh2008]

Hi

 

No sorry lets be clear enforcement is enforcement.(in its legal sense) It can only take place after a jujdjement and in court.

 

Best regards

Peter

 

What would you call the issuing of a DN citing repayment of arrears required when a creditor is trying to enfor........ sorry errrr 'coerce' (taken from Enforce Synonym | Synonym of Enforce and Antonym of Enforce at Thesaurus.com) the terms and conditions of the agreement.

 

When you have decided what you want to call it - where are the restrictions placed upon the creditor within the CCA as to what and when they can do it.

 

76.—(1) The creditor or owner is not entitled to enforce a term of a regulated agreement by—

(a) demanding earlier payment of any sum, or

(b) recovering possession of any goods or land, or

© treating any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred,

That would clearly indicate that the actions of a,b or c are deemed enforcement

 

Reading S142

142.—(1) Where under any provision of this Act a thing can be done by a creditor or owner on an enforcement order only, and either—

(a) the court dismisses (except on technical grounds only) an application for an enforcement order, or

(b) where no such application has been made or such an application has been

dismissed on technical grounds only, an interested party applies to the court for a declaration under this subsection

the court may if it thinks just make a declaration that the creditor or owner is not entitled to do that thing, and thereafter no application for an enforcement order in respect of it shall be entertained.

That seems to clearly indicate that again an enforcement order is not baliffs knocking at the door but rather giving permission to the creditor to e.g. demand the payment of sums not due.

 

IMHO the creditors do not approach the court properly. Their POC should set out what they want and under what sections of the Act they want it. Then the court would know whether they are asking for e.g. an enforcement order

“ enforcement order” means an order under section 65(1), 105(7)(a) or (b), 111(2) or 124(1) or (2);

or whether the creditor thinks everything is perfect and they are demanding early repayment under S87

[Peterbard]

What would you call the issuing of a DN citing repayment of arrears required when a creditor is trying to enfor........ sorry errrr 'coerce' (taken from Enforce Synonym | Synonym of Enforce and Antonym of Enforce at Thesaurus.com) the terms and conditions of the agreement.

 

When you have decided what you want to call it - where are the restrictions placed upon the creditor within the CCA as to what and when they can do it.

 

 

That would clearly indicate that the actions of a,b or c are deemed enforcement

 

Reading S142

 

That seems to clearly indicate that again an enforcement order is not baliffs knocking at the door but rather giving permission to the creditor to e.g. demand the payment of sums not due.

 

IMHO the creditors do not approach the court properly. Their POC should set out what they want and under what sections of the Act they want it. Then the court would know whether they are asking for e.g. an enforcement order or whether the creditor thinks everything is perfect and they are demanding early repayment under S87

 

 

Hi

 

Excelent bit of research. but as i said i have seen all these points myself and to a deree i agree with you BUT

 

It does not matter what you or i think the deffinition of "enforce" is , itthe opinion of the bloke in the wig that matters and that is what we have to work with

 

Respect

Peter

[gh2008]

It does not matter what you or i think the deffinition of "enforce" is , itthe opinion of the bloke in the wig that matters and that is what we have to work with

 

Now that's where I have to agree with you and I must admit I used your argument on another thread myself tonight. Whether I myself agree with it or not, precedent says that your earlier argument is the one influencing the 'one in the wig' at the moment

 

BUT, good humoured discussion and challenging our own thinking is what a lot of these threads are about ... and long may it continue

 

All the best

gh

[diddydicky]

it is my opinion that "enforcement" starts with the DN

 

the authority for my proposition is that the prescribed wording of the DN clearly makes reference to the "Further enforcement" that will occur if it is not complied with

 

Despite all the huffing and puffing by the other side and some numpty judges as to what constitutes "enforcement", if the consumer credit act itself clearly states that the DN is "enforcement" then any other interpretattion of the DN is just plain wrong

 

the reporting to CRA's of information as to the conduct of the account is clearly NOT enforcement since it is simply reporting as a matter of fact that a certain event has "occurred" (ie the debtor failed to make certain payments)

 

whilst the motives sometimes of these reports is questionable, it is open to the debtor to place against EACH entry and explanation of up to 200 words

 

as an aside i suggest that if all debtors excercised that right even if just to put " disputed account- creditor has failed to comply with s78)-the CRA's systems may well crash!!

Edited January 27, 2010 by diddydicky

[the_shadow]

it is my opinion that "enforcement" starts with the DN

 

the authority for my proposition is that the prescribed wording of the DN clearly makes reference to the "Further enforcement" that will occur if it is not complied with

 

Despite all the huffing and puffing by the other side and some numpty judges as to what constitutes "enforcement", if the consumer credit act itself clearly states that the DN is "enforcement" then any other interpretattion of the DN is just plain wrong

 

The new OFT consultation guideline paper clearly separates enforcement legally and in terms of contracts and explains the usage of said word.

 

S.