Devil's Advocacy

[Et Contra Pacem Regis]

Following on from discussion on the Dissecting the Manchester Test Case thread, this is intended as an oppertunity to expose the weaknesses and risks of various common arguements, for those who might be intimidated by the usual reaction on this forum to dissent. For the majority it will hopefully sharpen these arguments, as well as sounding a note of caution.

 

To further this purpose, please leave accusations of bad faith (e.g. that any person posting is trolling, posting on behalf of a creditor, stupid, or acting out of self-interest) outside. If you don't like it, leave the thread alone and it will die of its own accord fairly quickly.

 

To set the ball rolling, three arguments I think will not work, and briefly why:

 

1. Reliance upon CCA after a CCJ has already be granted

(save where the CCJ is set aside of course). Reasoning: Once a CCJ has been obtained, any further steps the creditor takes rely upon the CCJ, not on the original credit agreement. As for limitation purposes, the CCJ is a fresh start the debt and unless it is set aside, CCA issues will not be considered by the courts.

 

2. The "Approved Limit" vs "Credit Limit" point.

Reasoning: Wilson v Hurstanger says that "prescribed term" means a contractual term, and that a term is present if the court can identify it. I think that the court will say "Approved Limit", on its true construction means "credit limit". It is not unusual for loan agreements to use terms other than "amount of credit" when expressing a figure which is, in fact the amount of credit.

 

3. The arguement that accepting a repudiatory breach, following the service of a defective DN will prevent the creditor from recovering the outstanding balance.

Reasoning: accepting a repudiatory breach will terminate the contract. In cases where the contract provides that the oustanding balance falls due on termination, no further default notice will be needed, because the creditor will not need to terminate or demand earlier payment of any sum - the whole sum is due on termination.

[postggj]

may i ask where you got your info on the dn

 

a link please

 

very strange

[Et Contra Pacem Regis]

I should point out that the above are, like much else here, arguements - see the Manchester Test case thread starting about page 143 for lengthy arguement about DNs. To expand, as I understand it the presently accepted CAG arguement goes like this:

1. Creditor serves a Default Notice which is wrong and therefore invalid per Woodchester.

2. Creditor then sends a Termination Notice, or does something else that indicates they consider the agreement at an end. This is a repudiatory breach.

3. Either, the repudiatory breach is itself "unlawful recission" or the debtor can accept the breach and so bring the agreement to an end. After this point the creditor cannot by any means recover anything but arrears already outstanding.

 

I disagree, basically for these two reasons:

 

1. I do Not think that the creditor can effect termination without service of a valid default notice, because of section 87(1). Whatever the creditor says, the agreement endures. Its repudiation of the agreement is a breach of contract but does not end the agreement.

 

2. If the agreement is terminated by the debtor - by accepting the repudiatory breach which takes place when the creditor purports to terminate - then the oustanding balance will fall due at that point, if the contract says that that is the case. In the other thread I pointed to a term to that effect in a Cahoot agreement, and another less clear term in a Captial One agreement.

 

That what you wanted?

Edited July 1, 2010 by Et Contra Pacem Regis
damn typo...

[ScarletPimpernel]

 

To further this purpose, please leave accusations of bad faith (e.g. that any person posting is trolling, posting on behalf of a creditor, stupid, or acting out of self-interest) outside. If you don't like it, leave the thread alone and it will die of its own accord fairly quickly.

 

 

Since when have you made the rules on CAG?

 

If you have problems with anything in your list, alert the Site Team and we will moderate the thread and take action against offenders if necessary.

[Et Contra Pacem Regis]

Apologies if I've trodden on your toes - no rule making intend, just a request, following things said on the previous thread.

[postggj]

Ive Had Three Welcome Agreements In Court On A Defective Default Notice

 

Ie

 

Putting A (14 Days) Instead Of A Numerical Date

 

Judge Has Accepted Each One Of Them

 

Thats Me Included On One Of Them

[Et Contra Pacem Regis]

Yes Defective Default notices are no good. If Welcome or anyone else go to court based on one the most they can hope for is arrears to date. That's clear from Woodchester and I accept it.

 

All I'm saying is that the arguement outlined above won't necessarily stop a creditor getting the oustanding balance, if they try.

 

Out of interest have Welcome tried to serve proper DNs and go to court all over again following judgment, or have they just given up?

[banker_rhymes_with]

Devil's Advocacy

 

BRW TRANSLATION SERVICE :

 

=============================

 

Following on from discussion on the Dissecting the Manchester test case thread, this is intended as an oppertunity to expose the weaknesses and risks of various common arguements, for those who might be intimidated by the usual reaction on this forum to dissent. For the majority it will hopefully sharpen these arguments, as well as sounding a note of caution.

Translation: I can't be bothered to read Surfaceagentx20's Thread, so thought I'd re-hash things here in the deluded hope that I can engineer a more bank-friendly outcome and trap a few stray Debtors in the process.

 

To further this purpose, please leave accusations of bad faith (e.g. that any person posting is trolling, posting on behalf of a creditor, stupid, or acting out of self-interest) outside. If you don't like it, leave the thread alone and it will die of its own accord fairly quickly.

Translation: I'm hoping to duck below the radar of the more astute CAGGERs, but if they do pitch up, then I felt my best strategy was to drip and moan about how beastly Trolls are treated, hoping to get some sympathy going to hide my true motives. However, being the fine upstanding Troll that I am, I thought I would say this with a hint of venom, in line with standard industry practice.

 

To set the ball rolling, three arguments I think will not work, and briefly why:

 

1. Reliance upon CCA after a CCJ has already be granted (save where the CCJ is set aside of course). Reasoning: Once a CCJ has been obtained, any further steps the creditor takes rely upon the CCJ, not on the original credit agreement. As for limitation purposes, the CCJ is a fresh start the debt and unless it is set aside, CCA issues will not be considered by the courts.

Translation: I wanted to insert something complex sounding that is otherwise common sense, to make out I know what I'm talking about.

 

2. The "Approved Limit" vs "Credit Limit" point. Reasoning: Wilson v Hurstanger says that "prescribed term" means a contractual term, and that a term is present if the court can identify it. I think that the court will say "Approved Limit", on its true construction means "credit limit". It is not unusual for loan agreements to use terms other than "amount of credit" when expressing a figure which is, in fact the amount of credit.

Translation: if I can make people believe this, me and my banking mates can duck s87 and turn sums due in the future into arrears just by slashing the Credit limit, i.e. with just a single shake of our magic DCA sock.

 

3. The arguement that accepting a repudiatory breach, following the service of a defective DN will prevent the creditor from recovering the outstanding balance. Reasoning: accepting a repudiatory breach will terminate the contract. In cases where the contract provides that the oustanding balance falls due on termination, no further default notice will be needed, because the creditor will not need to terminate or demand earlier payment of any sum - the whole sum is due on termination.

Translation: I'm trying the old Contract trumps Law magic trick again, in the hope that people will not spot what I'm really trying to say. That being, when we encounter a troublesome aspect in the Act, we'll pretend our General Terms can overcome anything awkward provided we shout loud enough and keep our fingers crossed you don't spot the flaw in our cunning plan.

 

I should point out that the above are, like much else here, arguements - see the Manchester test thread starting about page 143 for lengthy arguement about DNs. To expand, as I understand it the presently accepted CAG arguement goes like this:

 

1. Creditor serves a Default Notice which is wrong and therefore invalid per Woodchester.

 

2. Creditor then sends a Termination Notice, or does something else that indicates they consider the agreement at an end. This is a repudiatory breach.

 

3. Either, the repudiatory breach is itself "unlawful recission" or the debtor can accept the breach and so bring the agreement to an end. After this point the creditor cannot by any means recover anything but arrears already outstanding.

Translation: correct, that is indeed the CAG argument. Plus, if there is no properly executed Regulated Credit Agreement, then the Creditor can kiss the Arrears goodbye too!

 

I disagree, basically for these two reasons:

 

(1) I do Not think that the creditor can effect termination without service of a valid default notice, because of section 87(1). Whatever the creditor says, the agreement endures. Its repudiation of the agreement is a breach of contract but does not end the agreement.

Translation: Whatever the creditor says, should be taken with a pinch of salt, including my peculiar s87 ideas above. I tried this one on in another Thread, but it didn't work. I hate Regulation because that stops my bank and DCA friends from doing what ever they want.

 

(2) If the agreement is terminated by the debtor - by accepting the repudiatory breach which takes place when the creditor purports to terminate - then the oustanding balance will fall due at that point, if the contract says that that is the case. In the other thread I pointed to a term to that effect in a Cahoot agreement, and another less clear term in a Captial One agreement.

Translation: I'm desperate, because my whole argument is trashed by s173(1) of The Consumer Credit Act 1974, i.e. Contracting Out is Forbidden where the measure is there for the protection of the Borrower. I know Law trumps Contract, but I'm in a fix and I have everything crossed that you won't spot what I'm trying to achieve here.

 

=============================

 

If you don't like it, leave the thread alone and it will die of its own accord fairly quickly.

(1) I confirm I do not like it.

 

(2) No, I can't leave the Thread alone.

 

(3) Yes, I do hope this latest attempt to infest CAG will die a death too, the sooner the better.

 

Cheers,

BRW

[robcag]

Very well put BRW!

 

I wholeheartedly agree with each and every one of your 'Translations'.

 

I was going to comment on the thread earlier and disagree with the OP, but I'm not as well-phrased or 'poetic' as you are, and my comments wouldn't have come across nearly as well as yours, so congratulations on another of your excellent posts!

 

Cheers

Rob

[pmhcfc]

Et Contra Pacem Regis

 

You are the weakest link........Goodbye

[postggj]

Yes Defective Default notices are no good. If Welcome or anyone else go to court based on one the most they can hope for is arrears to date. That's clear from Woodchester and I accept it.

 

All I'm saying is that the arguement outlined above won't necessarily stop a creditor getting the oustanding balance, if they try.

 

Out of interest have Welcome tried to serve proper DNs and go to court all over again following judgment, or have they just given up?

 

 

 

i take it then you have not heard of part 38 discontinuance:grin:

[UnitedFront]

Yes Defective Default notices are no good. If Welcome or anyone else go to court based on one the most they can hope for is arrears to date. That's clear from Woodchester and I accept it.

 

All I'm saying is that the arguement outlined above won't necessarily stop a creditor getting the oustanding balance, if they try.

 

Out of interest have Welcome tried to serve proper DNs and go to court all over again following judgment, or have they just given up?

 

How the hell do you propose that they can serve a Default Notice on a contract that they've ALREADY ended? That is the whole defence, or do you not get this point?

 

The defence is that they unlawfully ended your contract by not following the proper protocol. If what you're saying is true and they could get around this fact by simply sending a new DN, then the contract would HAVE TO STILL BE IN FORCE and therefore there would be no defence at all. This is quite clearly not the case. When they purport to terminate the contract and remove your facilities, they end the contract; therefore there is nothing in the future upon which they can serve a DN.

 

This is all only in my humble opinion, obviously, and I proclaim not to be an expert; but I suspect my motives are considerably more genuine than yours and I credit myself with an ability to read and digest information.

 

Fact is we could name probably hundreds of cases just were people from cag have used this defence successfully. I don't think even a well prepared lip would lose to the argument you put forward, let alone any professional worth his weight in even sea water, never mind salt or gold!!!!

 

I personally think this thread is a FANTASTIC thing and long may it remain....

 

And before any caggers think I've temporarily gone insane and thrown all morals out the window; I think it's a great idea because all new (and existing) caggers can now see at first sight the flimsy, underhand tactics and arguments employed by the credit and dca industry and, more importantly, could be a great place to see the arguments used to rebutt the (often) ridiculous points placed forwards by such an industry.

 

Just in the few hours this thread has been here, we've seen steps towards completely tearing down such argument and showing it for what it is.

 

Potentially quite helpful to other caggers, I think, if everyone can see, in one place, a "dossier" or "index" of these arguments - followed by other experienced caggers shredding them to pieces.

 

Cheers

UF

 

 

P.S. Et Contra Pacem Regis (aka - "and against peace you rule" - apt name, btw), time to come clean mon petit choux-fleur; who are you working for - what dca/bank/credit company? What has been the plan? What is it - seen so many trolls get torn to shreds within a post or two, so make some posts, try to gain respect and confidence and then trap unsuspecting debtors through dodgy advice? A covert operation like you're trying to be a baddie from a James Bond film? If so then bad luck, mon ami, because caggers know what you're about....

Edited July 2, 2010 by UnitedFront

[spamheed]

Oh Dear.......Never mind

 

I do like it when someone who thinks they are something that they are not (in this case knowledgeable) is shown up to be the opposite. I truly hope your new career goes well because this one seems to be floundering a little.

 

Have a nice day and can I have fries with my burger please

[Mr Worried]

Devil's Advocacy

 

BRW TRANSLATION SERVICE :

 

=============================

 

Translation: I can't be bothered to read Surfaceagentx20's Thread, so thought I'd re-hash things here in the deluded hope that I can engineer a more bank-friendly outcome and trap a few stray Debtors in the process.

 

Translation: I'm hoping to duck below the radar of the more astute CAGGERs, but if they do pitch up, then I felt my best strategy was to drip and moan about how beastly Trolls are treated, hoping to get some sympathy going to hide my true motives. However, being the fine upstanding Troll that I am, I thought I would say this with a hint of venom, in line with standard industry practice.

 

Translation: I wanted to insert something complex sounding that is otherwise common sense, to make out I know what I'm talking about.

 

Translation: if I can make people believe this, me and my banking mates can duck s87 and turn sums due in the future into arrears just by slashing the Credit limit, i.e. with just a single shake of our magic DCA sock.

 

Translation: I'm trying the old Contract trumps Law magic trick again, in the hope that people will not spot what I'm really trying to say. That being, when we encounter a troublesome aspect in the Act, we'll pretend our General Terms can overcome anything awkward provided we shout loud enough and keep our fingers crossed you don't spot the flaw in our cunning plan.

 

Translation: correct, that is indeed the CAG argument. Plus, if there is no properly executed Regulated Credit Agreement, then the Creditor can kiss the Arrears goodbye too!

 

Translation: Whatever the creditor says, should be taken with a pinch of salt, including my peculiar s87 ideas above. I tried this one on in another Thread, but it didn't work. I hate Regulation because that stops my bank and DCA friends from doing what ever they want.

 

Translation: I'm desperate, because my whole argument is trashed by s173(1) of The Consumer Credit Act 1974, i.e. Contracting Out is Forbidden where the measure is there for the protection of the Borrower. I know Law trumps Contract, but I'm in a fix and I have everything crossed that you won't spot what I'm trying to achieve here.

 

=============================

 

(1) I confirm I do not like it.

 

(2) No, I can't leave the Thread alone.

 

(3) Yes, I do hope this latest attempt to infest CAG will die a death too, the sooner the better.

 

Cheers,

BRW

 

Well done, BRW

 

I was gonna write respond the same way too, ha ha

 

Mr W

[Mr Worried]

Oh Dear.......Never mind

 

I do like it when someone who thinks they are something that they are not (in this case knowledgeable) is shown up to be the opposite. I truly hope your new career goes well because this one seems to be floundering a little.

 

Have a nice day and can I have fries with my burger please

 

Spam Spam..do I detect a hint of stereotyping there?

 

Erm but whilst your at it, can I have anothe DOH NUT

 

Mr W

[Brigadier 1JCS]

Sounds like a DCA's compliance manager with to much time on his hands!!

[DonkeyB]

Crikey guys, steady on! I actually agree with the OP on points 1 and possibly 2. Point 1 is well known on CAG, so no argument.

 

Point 3 I TOTALLY disagree with. It has no merit.

 

However, if you look at the OP's history of posts (which BRW clearly has), they are for the most part useful and questioning if often very provocative and sometimes downright mistaken. The OP in this thread has combined a pile of bulldo with a couple of valid points.

 

But I don't think we should shout 'troll' every time we don't like what someone says. While I think the OP may well be on the other side of the fence from most Caggers, I don't think that's any reason to brand them as enemy.

 

That would be like saying all barristers are evil because they act for DCAs!

 

That said, I love BRW's pithy and amusing reply.

 

While I question the motive for starting the thread, I think it's fair to say that DCAs change tactics all the time - look at Cabot's new strategy of trying to claim as arrears the whole sums on already-defaulted and terminated accounts - so let's keep the arguments open, and try and win them courteously.

 

We can learn from this - if DCAs try to use the arguments in point 3, then we're ready! And that can't be bad. If the OP is a troll, then he's telling us exactly what the DCA tactics may turn to, and that's useful.

Edited July 2, 2010 by DonkeyB

[UnitedFront]

Oh Dear.......Never mind

 

I do like it when someone who thinks they are something that they are not (in this case knowledgeable) is shown up to be the opposite. I truly hope your new career goes well because this one seems to be floundering a little.

 

Have a nice day and can I have fries with my burger please

 

Ummm..... sorry was that directed at me or Et Contra Pacem Regis....?

 

UF

[DonkeyB]

Sounds like a DCA's compliance manager with to much time on his hands!!

 

He got possibly 2 out of 3 points right - so he's overqualified to be a compliance manager!

[Rhia]

The Cabot Fan Club know EXACTLY who this is.

 

Words are powerful things and style of writing is a personal as your hand writing. It didn't take long for CFC to work this one out.

 

CAGers have to ask themselves exactly why these forums are being subjected to a massive troll attack? Could it be that quite ordinary people are having the audacity to actually study the law, learn how to defend themselves against constant and utter bulls1t attacks (and worse) and WIN!!!

 

This, together with changes to regulations (assisted by CAGers and other forums and groups who have had the guts to stand up to the bullying and harrassment) has had a profound affect on the DCAs' prosperity.

 

The banks, in their obscene haste to sign up as many people they could to their shameful little money making activities, engaged in "agreement" practices and shoddy record keeping of a standard that would shock most boy scout groups' petty cash regulations. But such was their arrogance and air of invincibility they assumed no-one would ever have the conjones to challenge them.

 

So, when aforementioned debts go pectorals up they merely write it off to tax (possibly offshore due to massive securitisation sleight-of-hand malarkey) and then sell them for pence in the £ to the DCAs. This way the dirty job goes elsewhere and they can carry on sponsoring Forumla 1 or some such and feeling good about themselves.

 

Do not let any of these people try to tell you they have made a loss. They have not. Securitisation of fiat money is literally making money out of thin air. They have long since made their profits hence the casual sell off for tax "efficiencies".

 

Frankly, I would like to see the day dawn when banks take full responsibility for their lending and bad debt and aren't allowed to sell these debts off to a bunch of DCAs who try and add a veneer of respectability to their dealings but basically all they have done is replace the baseball bat with swish offices and BMWs.

 

As someone once observed: "You can't polish a turd, but you can roll it in glitter."

 

I won't even attempt to add anything to BRW's masterly riposte as he is indeed a CAGer at the top of his game.

 

But all I can say is, nice try boys but a last and very desperate throw of the dice mon brave! And if your employer can afford to pay you to spend your time posting on these forums, then one can only summise that things must be very bad indeed.

 

But do keep it coming, the entertainment value is priceless.

Edited July 2, 2010 by Rhia

[Hardupnotfedup]

Ummm..... sorry was that directed at me or Et Contra Pacem Regis....?

 

UF

 

Obviously at Contra, UF

[UnitedFront]

Obviously at Contra, UF

 

Haha yeah I thought so

 

UF

[DonkeyB]

Perhaps a better 'handle' for the OP would be Veritas nos defendit?

[UnitedFront]

Perhaps a better 'handle' for the OP would be Veritas nos defendit?

 

 

Hahaha I have to love that!! Very good indeed, I love starting the morning with a good chuckle

[andrew1]

The Cabot Fan Club know EXACTLY who this is.

 

".

 

Frankly, I would like to see the day dawn when banks take full responsibility for their lending and bad debt and aren't allowed to sell these debts off to a bunch of DCAs who try and add a veneer of respectability to their dealings but basically all they have done is replace the baseball bat with swish offices and BMWs.

 

 

..and the odd Aston Rhia, don't forget three Aston Glen will you?