Are My Agreements Enforceable?

[johndeevoy]

dbabylon said:

How is it "legally invalid"? It isn't, it may be unenforceable, but the two should not be confused.

 

If you could further explain this I would be grateful. In my understanding of the law, the very definition of a 'right' is something that is enforcable in law. To say that a right exists but cannot be enforced is legal nonsense. If it cannot be enforced then there can be no 'right'.

 

asokn said:

Exactly, unenforceable contracts are not suddenly a write off because of some technicality

 

Statues are there for a reason. Why bother making a statue that provides very specific directions, if when those directions are not complied with, the breacher can expect to continue on as if the requirements had been met.

[asokn]

johndeevoy said:

To say that a right exists but cannot be enforced is legal nonsense. If it cannot be enforced then there can be no 'right'.

 

If you read McGuffick again you can see very clearly the conceptual distinction between an unenforceable right and a right which no longer exists or did not exist ab initio.

 

johndeevoy said:

Statues are there for a reason. Why bother making a statue that provides very specific directions, if when those directions are not complied with, the breacher can expect to continue on as if the requirements had been met.

 

Clearly you've never read the Dangerous Dogs Act

 

The point of the legislation is to make a non compliant agreement unenforceable and therefore not liable to be pursued through the courts. It is not intended to give a debtor a free pass because of some technical non compliance and it is most certainly not intended to frustrate the legitimate aims of credit reference agencies by making those who default, perhaps wilfully in the knowledge that the agreement is unenforceable, seem like sound credit risks.

[johndeevoy]

I remember reading an interview with Bennion who drafted the legislation wherein he stated that intention was to make the regulations strict so that a creditor who defaults on them would lose their rights. Particulary with regards having in their possession the original agreement signed by both parties. As we know, banks like to 'securitize' debt, packaging up consumer loans and selling them on. if the bank doesn't have your original signed agreement how then can it prove it has suffered a loss and not merely sold your promissory note to a third party?

 

I wish I could find the link to that Bennion interview.

[asokn]

The bank doesn't have to prove it suffered a loss.

 

I have to say, your arguments are increasingly less about the law and more the sort of thing one finds in the rather less informed parts of the Internet (goodf, fotl etc)

[johndeevoy]

The bank doesn't have to prove it suffered a loss.

 

I have to say, your arguments are increasingly less about the law and more the sort of thing one finds in the rather less informed parts of the Internet (goodf, fotl etc)

 

I don't know what goodf, fotl are. But what you say here about proving a loss is completely incorrect. The whole basis of bringing a monetary claim is that you are seeking restitution from the Courts based an a loss incurred due to the other parties breach. If a contract is breached but no loss incurred then there is no claim for restitution. Very basic stuff my friend.

[Old Cogger]

this might help?

Section 127 meaning by author.doc

[asokn]

I don't know what goodf, fotl are. But what you say here about proving a loss is completely incorrect. The whole basis of bringing a monetary claim is that you are seeking restitution from the Courts based an a loss incurred due to the other parties breach. If a contract is breached but no loss incurred then there is no claim for restitution. Very basic stuff my friend.

 

Don't patronise me.

 

The bank is almost never put to proof of loss because it's self evident from the fact that a credit card debt has not been repaid. You are barking up the wrong tree by talking about promissory notes.

 

Would you like to respond to the legal points I raised regarding the meaning of enforcement?

[johndeevoy]

The bank is almost never put to proof of loss because it's self evident from the fact that a credit card debt has not been repaid.

QUOTE]

 

Well you defeat your own argument as there is a difference between 'not having to prove any loss' as you originally state and 'the bank is almost never put to proof of loss'. It is up to every defendant to put the claimant to strict proof of loss. Statements as of themselves are not proof of loss. A defendant is quite entitled to see the original wet-ink agreement and if the creditor cannot produce same the defendant is entitled to require the claimant to provide accounting details surround the alleged loss, including whether ot not the debt has in whole or in part been sold to another party (securitized).

[Guest]

johndeevoy

you mentioned s127(3) earlier. this relates to an enforcement order eg re s65(1) cca.

post s127(3), an accurate (Kotecha/Phoenix CA case) recon would suffice re a cca request, and prob for the court to make an enforcement order as there is now no auto ban on enforcement order where there is no signed doc that contains all of the prescribed terms, subject to the other provisions eg prejudice etc.

as has been said, the 'loses his rights' in wilson that you mention were in consideration of s127(3)(4) and an enforcement order re performance. note also para 164 of wilson ie an improperly executed agreement does not mean that it is void or unlawful.

the basis of creds bringing a claim is 'performance'. s127(3) provided an auto ban on ordering this if there was not a signed doc with all the prescribed terms. now though, where this is so, it is pretty much re equity. as specific performance is.

Edited April 11, 2012 by Ford

[johndeevoy]

Would you like to respond to the legal points I raised regarding the meaning of enforcement?

 

I cannot make any further comments on this other than the Courts themselves seem to be confused by the issue. If a contract affords an entity certain rights and that entity seeks to take action based on those rights then that is an example of one 'enforcing ones rights under the contract'. I think this is the basis on which the term 'enforcement' was used in the drafting of the CCA1974. Of course the Courts interpret matters differently from time to time. Personally, I cannot understand how 'unenforceable rights' can exist at all. A right by it's very definition is something that can be enforced in law. An 'unenforceable right' is null, void and useless.

[asokn]

Personally, I cannot understand how 'unenforceable rights' can exist at all. A right by it's very definition is something that can be enforced in law. An 'unenforceable right' is null, void and useless.

 

OK, well if you can't get your head around it I understand, you're not legally trained I presume, but I don't think there's much more I can say to try to explain it to you. Hopefully someone else will be able to add to your understanding.

[johndeevoy]

OK, well if you can't get your head around it I understand, you're not legally trained I presume, but I don't think there's much more I can say to try to explain it to you. Hopefully someone else will be able to add to your understanding.

 

Actually, you haven't explained or attempted to explain anything. You just suggested reading McGuffick again. I've read it a few times and Flaux gets it wrong at 67 'If the court declines to make an order or section 127(3) precludes the court from making an order, then the creditor cannot enforce the agreement. Its rights continue but cannot be enforced'. This flys in the face of Wilson -v- First County, especially regarding 127(3).

 

I would welcome some further insights as to how an 'unenforcable right' can exist. It seems to me that this is something that has been invented solely to pander to the banks. If someone can give another example from outside of the credit world I would be very interested.

[asokn]

If someone can give another example from outside of the credit world I would be very interested.

 

If it helps, a rather extreme example which springs to mind would be that of an asset freezing order. Ordinarily a person has the right to dispose of their assets how they please but, if that person is subject to a temporary freezing order then they cannot do that; they have to retain the asset until the order comes to an end. In other words the right of disposal is temporarily unenforceable.

[johndeevoy]

If it helps, a rather extreme example which springs to mind would be that of an asset freezing order. Ordinarily a person has the right to dispose of their assets how they please but, if that person is subject to a temporary freezing order then they cannot do that; they have to retain the asset until the order comes to an end. In other words the right of disposal is temporarily unenforceable.

 

Or in other words, there is NO RIGHT to dispose of the asset while the order is in force. In your example the right to dispose is extinguished, albeit temporarily. This is clearly not the same as saying that a creditors rights remain and they can pursue and act upon those rights as they wish, apart from enforcing them in Court.

 

In your example, does the right to dispose 'remain but cannot be enforced'? If this was the case then the asset owner is free to dispose of the property as no Court enforcement is required to sell property.

 

Your example actually does more to prove my proposition that an 'unenforcable right' is not legally possible. Either the right exists and can be enforced in law or it cannot exist as a right. It appears that some judges are pandering to the banks regarding these 'rights that can continue under legally unenforcable contracts'. I maintain that Flaux got it wrong at p67 McGuffick. The decision in Wilson -v- First County is the correct one.

[asokn]

I think you're arguing semantics now; I would say the right continues to exist but is unenforceable whereas you would say the right has been temporarily extinguished. Linguistically 'extinguishing' suggests finality but I don't think it matters really.

 

As for your view that the court was wrong, it really doesn't matter what you or I think about a decision; what's important is understanding the decision. You would get nowhere in court by just saying you think the decision is wrong, the doctrine of stare decisis is a fundamental feature of our common law legal system.

[johndeevoy]

Well, I didn't just blindly say it was wrong, I said that p67 McGuffick contradicts Wilson -v- First County.

[johndeevoy]

I would say the right continues to exist but is unenforceable.

 

So, in terms of your asset example the right still exists (to sell his asset) but is unenforceable (meaning that he is prohibited by the Courts to avail of his right).

 

Contrast to a CCA situation, the rights still exists (to record information with CRAs) but is unenforceable (meaning that the Courts just let it happen anyway??).

 

Surely, it is clear for all to see how some elements of the judiciary just side with the banks whatever the evidence and reasoning put before them. The CCA1974 was put in place to protect consumers and the rights provided by statue have been wittled away by some bizarre legal reasoning over the last 5 years. Removal of s127(3) on human rights grounds (what a joke that one was), case-law stating that a true copy can be reconstructed from the creditors imagination, and this farce regarding rights that exist even though there is no legal basis to enforce same.

 

Big money buys big law. Our judges are puppets in the banksters pockets.

[asokn]

I think we need to clarify, in the consumer credit context, what right we are talking about. The creditor's right *to enforce the agreement* is not enforceable against a debtor whilst the creditor is in default of a section 77 or 78 request. That has nothing to do with reporting to CRAs because that does not constitute enforcement in any event.

[Gaston Grimsdyke]

To the OP: instead of focussing on the creditor's rights, think about the debtor's obligations. Does the debtor have an obligation to repay the debt? Yes. Is that affected by the agreement being unenforceable? No. The obligation remains, it just can't be enforced through court action as decided by Flaux. The situation is identical to a statute barred debt which is not extinguished and the obligation to repay it continues; but that obligation cannot be enforced. That is trite law. Ask yourself why McGuffick wasn't appealed if it was so obviously wrongly decided.

[johndeevoy]

Personally, I am mainly concerned with the creditors right to process Defaults with CRAs even where the agreement is unenforcable.

 

Lets examine this fictional scenario: Under the current law, a crook with a scrap of paper headed Consumer Credit Agreement not even bearing your signature, stating on said scrap that you owe him £X and that you agree to him processing information with CRAs could take you to Court for £X that he claims he 'loaned' you. Lets say the Courts decalre the agreement unenforceable (it as after all a scrap of paper that the crook invented himself) but said crook could still destroy your credit file and theres nothing you can do about it as 'the crooks rights under the agreement still exist even though it is unenforceable'.

 

I believe this a fair reflection of the UK law as it stands today. Anybody with a scrap of paper headed Consumer Credit Agreement can destroy your credit file without any intervention from the Courts.

 

the intention of the CCA1974 was to force creditors to apply to the Courts to 'enforce' any of their rights under the regulated agreement. Where the CCA1974 states that an agreement is only enforceable on an order of the Court this clearly means that the creditor would lose any rights and the debtor is no longer under any obligations until such time as the Court decrees otherwise by making an enforcement order.

[asokn]

By why should the enforceability or lack thereof affect whether a default is registered? Should Person A with an exemplary credit history have the same credit score as Person B who has defaulted on all of his credit cards but, through chance, they have all been unenforceable?

 

Also, as discussed in McGuffick, there is a power for a debtor to apply to the CRA for rectification of his file so if some insane crook has taken it upon himself to ruin your score you can deal with it that way.

[johndeevoy]

Gaston Grimsdyke said:

The situation is identical to a statute barred debt which is not extinguished and the obligation to repay it continues; but that obligation cannot be enforced. That is trite law.

 

I hear this bankster-driven propagenda all over the place. If someone owes you a debt you have 6 years to prove it, after that it becomes unenforceable in law. That essentially means it is extinguished.

 

As I have already argued throughout this thread, the whole idea of an 'unenforceable right' is contradictory in terms, in logic, and therefore in law.

 

Please provide statute or case-law to support your argument. If your argument is correct creditors can come out of the woodwork 20-30-50 years from now claiming you owe them money and registering defaults with CRAs, even though there is no possible way for them to prove legally or otherwise that a debt is owed. Creditors have 6 years to prove a disputed debt, after this time no debt can exist in the eyes of the law and therefore at all. But the banks have manipulated the legal system so that they can hurt you if they like, whether or not they can prove a debt is owed.

 

asokn said:

Should Person A with an exemplary credit history have the same credit score as Person B who has defaulted on all of his credit cards but, through chance, they have all been unenforceable?

 

 

Quite simply yes. How can one default on a 'debt' that is not owed because the contract was not drawn up in accordance with statue? Or a debt that you dispute but the creditor has no intention of taking to Court to prove their claim?

[asokn]

I don't think it's possible to have a discussion with you if you keep accusing people of disseminating "propaganda" every time they post something you don't agree with while you make blanket statements about what is and is not the law without any regard to the correct legal position.

 

Would you like to have a discussion and possibly learn more about the law or do you want someone to just tell you how right you are?

[johndeevoy]

there is a power for a debtor to apply to the CRA for rectification of his file so if some insane crook has taken it upon himself to ruin your score you can deal with it that way.

 

Well, I think it is clear that you are affilitated in some way with the banks/loan companies. Anyone here that has been through the process of disputing a Default with the CRAs knows that this 'facility to rectify' is absolutely useless. Sure, they file a 'Notice of Correction' on the account but what weight does it carry? Absolutely none. So the insane crook simply replies 'I believe the money is owed' and your credit file continues in a destroyed state.

[asokn]

Quite simply yes. How can one default on a 'debt' that is not owed because the contract was not drawn up in accordance with statue? Or a debt that you dispute but the creditor has no intention of taking to Court to prove their claim?

 

It's very easy to default on a debt where the contract does not comply with the CCA. If I enter into a contract with you whereby you agree to repay me £500 by monthly instalments of £100 and you don't bother then you have defaulted, whether or not we drew up a CCA compliant agreement.