CCA's and Dave against the world !!!

[car2403]

Hi Dave,

 

I'd be more specific with this part;

 

That the court acknowledges the defendants defaults and acts appropriately

 

Just in case you get Judgment by Default or Admission (yeah, right!) I think you need to outline what you want them to do and give your authority for their powers under which they can do it. A stoopid Judge may not know!

 

From what I've seen its probably removal of Default under s.14(1) Data Protection Act 1998 and communication to third parties of that removal under s.14(3) of the same? There may be more...

 

The rest looks ok to me.

 

Good luck!

[car2403]

Hi Fred...

 

thought you had already subscribed to this thread ?

 

rgds

 

Dave

 

By the way, you don't need to post a reply - just use the "Thread tools" option on the right hand side of the top of the thread and select "Subscribe to this thread".

[car2403]

Excellent Dave!

 

You should get this added to the templates library as the formal follow up to the CCA request template letter, IMO!

 

 

All joking aside, I bet there's something (although I clearly wouldn't speak to a Judge like this...) that I can take from this as I'm about to construct Skeleton Arguments for claims in progress. So, taking away the **very subtle** sarcasism, (my interpretation ) this explains the situation perfectly!

[car2403]

.... final draft of poc is ready (i think) will post if you want to see it.

 

Would be good to see, just so I can laugh at them when you win in Court at least

[car2403]

Looking good. As you say, always something to question, but I think this is relevant feedback;

 

- Where you are referring to the Act, it might be an idea to quote the text of the Act/Sections then explain how they apply. You might get Judgment by Default, so you don't want to leave anything to the imagination, IMO.

 

- You've said it's a cancellable agreement, but haven't said why you think that is the case? This is what I used in my claim; [taken from a post by Peter Bard]

 

The agreement was improperly executed and did not contain cancellation details in breach of section 64 0f the act.

 

In that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, and that signing took place away from creditors’ premises making the agreement cancellable as per regulations.

 

The creditor is therefore in breach of section 64(1) and 127(4) of the act which renders the agreement unenforceable.

 

- You've referred to specific paragraphs from the Wilson Judgment. Given what I've said above, might be an idea to quote these paragraphs verbatim?

 

- At i) and j), it may be worth including s.59, as it's clearly a prospective agreement as isn't signed (or you can argue it anyway) and is void and not binding on you as a result. (Better than being improperly executed, IMO!)

 

- At n), I'd remove the word appears; (it either is or isn't executed)

 

n) Further as no executed regulated agreement appears to exist the defendant could not possibly have complied with Section 85 of The Act

 

- You haven't mentioned the Data Protection Act? Is this deliberate, or have I missed something? I would ask for an order under s.14(1) (removal, disposal and rectification of incorrect data from the data controller) and s.14(3) (removal, disposal and rectification of the same from third parties that have had the data shared with them)

 

The rest looks good - I can see why you can't issue this via MCOL! I've probably just added some more paragraphs to it too!

 

I'll watch this one with interest...

[car2403]

So does this mean when a DCA sends you a letter saying they are going to take court action and dont they have committed an offence under section 40 of the admistration of justice act 1970 and section1 of the malicious communications act 1988 and the criminal offence under the county courts act 1984 and the admistration of justices act 1970?

 

Sorry to sound blonde.

 

Chrissi

 

I don't think so, Chrissi, as they tend to be clever with the wording - typically using the word "may" rather than "will" when talking about issuing proceedings for non-action.

 

Having said that, it could amount to harassment, as it's a subjective test of what is harassement, rather than objective, from memory. Still difficult to prove, IMO.

[car2403]

Hi Dave

 

i must admit i didn't wish to sound negative, and i only posted after consultation with someone far more experienced than me in these matters

 

if the agreement is unenforceable then the option of a charging order is out the window anyway

 

i understand you feel the claim is winnable, you have to be bonkers to take such an action without a firm belief that you could succeed

 

however my concern would be that this could due to the importance of such a case be transfered to a higher court. you know they are not just going to sit back and do nothing and let you win by default

 

as i said previously you will face probably the most experienced barristers as these companies will do everything to win this as the ramifications of them losing would be massive.

 

you could for sure get the agreement deemed unenforcable, you could also get the charges returned and any defaults removed. im not convinced that there is an arguement for mistake

 

i have a full law library here and have many documents on pdf and having looked over Halsburys Mistake,Contract,Equity,Restitution and Estoppal i still believe that this is a seriously dangerous action to be considering without first having the particulars looked at by a lawyer

 

as i said ive posed the question regarding this to a Qualified Barrister of 20+ years and he shares my concerns

 

however he does see certain merits of your case and agrees with my view that the PPI,charges etc would be the best course of action for you

 

i would happily email you those PDFs for you to browse over so you can see where im coming from

 

Regards

paul

 

Good advice Paul. Personally, I think you would have to be on a public crusade, as well as having the resources of a millionaire, if you were wanting to set some binding precedant by taking a legal landmark claim in this way - I don't have such resources at my disposal, so I'm going for the unenforceable agreement/charges/Default removal actions you mention.

 

It's a shame the consumer groups, including CAG, couldn't get their heads together and start lobbying for a Test Case, or legal declaration on this issue - I'm sure it would turn the tables on Creditors, as the effect of understanding of compliance with s.77/s.78 requests is having now, which could be catastrophic for everyone in the end.

[car2403]

If a declaration of unenforceability against a party to the contract is made (such as the creditor being told they can't enforce) that doesn't effect the enforceability of the contract by the other party. This means you can continue to make payments regularly and continue to receive benefits under the contract. The problem will be that they may still be able to remove credit limits and the like by varying the agreement. (if that is allowed)

 

Enforceability of a Credit Agreement has no bearing on the debt - I think it's wise to make this clear in your POC and skeleton arguments, as trying to get out of the debt (or appearing to be trying to) will get the Judge's back up and will probably means he's sympathetic to the Creditor.

 

I can see why you'd go after interest, rather than payments, paid, Dave, as there can't be an agreement that says the rate of interest you "agreed" to be charged. Proving you've used the cash/goods is easy, but proving the agreement over rates of interest would be a lot more difficult. Although, I'm sure I've read something in the Act that allows the Court to enforce certain terms, or vary them accordingly, which could mean they apply an "average" APR (not sure how they'd do that) and apply that, which might buck your argument? (Can't remember the section, off-hand)

 

I still feel correcting of credit reference files and some damages along the way would be all I would chase.

 

Thanks for your input Paul - invaluable as always!

[car2403]

They have YTS's answering the phones then!

 

[car2403]

WOW! That's amazing...

 

I am concerned your opening up the gates for them to claim recovery against you by arguing that you have an unexecuted agreement, but if it's unexecuted it's unexecuted and shying away from it wouldn't be right. You've also covered off restitution, so I suppose that covers it. I think you've covered off the alternative, if the Court decides it is executed, so it's a small risk.

 

I'll watch with interest... Can't wait to see what happens.

 

Merry Christmas, Dave! Hope Santa is good to you on this one!

 

[car2403]

Ok, just trying to get my head around this. Are you saying that if a creditor or DCA cannot produce an enforceable CCA then the agreement is void and all monies have been demanded historically without legal substance.

 

I have three creditors right now, none whom cannot produce the CCA and are in default. I settled with one of them (DCA) pre CAG under duress and also made payments to to the other under duress, again pre CAG.

 

Are you suggesting that there may be a route (although highly speculative) to ask for return of payments etc or am I misunderstanding the approach?

 

There is the option of unjust enrichment and claims for restitution, but it's highly dangerous and comes with little precedant from what I can see. This is why Dave's thread is so interesting, if he goes ahead as planned, as it could become a binding precedant because of the issues involved.

 

These are more unchartered waters. The first question must be "is this a contract?". Well, although it might be as far as the rest of the commercial world is concerned - contract by performance - it isn't according to the CCA. A CCA has to jump through a number of hoops before it can be classed as a CCA. Many that we've read about on here have fallen foul of the small print and have subsequently rendered themselves unenforceable.

 

With respect Edz, whether it's a contract or not, if it's unenforceable under the CCA it's irrecoverable under contract law in a Court due to Wilson -v- First County Trust. CCA regulated agreements are contracts, but a contract doesn't have to be CCA regulated - to be enforced through a Court, any Consumer Credit Agreement must be regulated by the CCA regardless of it's contractual status. (But, by its nature, will be a contract if it's enforceable) This confuses the issues Dave has here, IMO.

 

Thinking out loud ... Both the UK and the European Consumer Credit Directive make it very clear that a consumer credit agreement must be in writing, otherwise it cannot be classed as a consumer credit agreement. (apart from the minor exceptions we are aware of). For a court to refuse to void a contract based on performance would appear to fly in the face of UK and Euro law.

 

Agreed, although I wouldn't say it appears - I'd say it does and would give clear grounds for an Appeal if that happened.

 

And... there is section 65;

 

Agreement to enter future agreement void.

— (1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

 

(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations

 

Sorry to appear pedantic, but that's s.59, not s.65 which is about improperly executed agreements.

 

Those flyer things were not regulated contracts. If I put those words on a fag packet and get you to sign it with all the prescribed terms conveniently missing then it is not an "unenforceable agreement" - it isn't an agreement at all. A contract is binding if the parties BOTH know what they are agreeing to. You can't enter into a two line contract with "the small print to which you are conveniently now committed by virtue of your signature" the substance of the contractual terms being sent (possibly) a few weeks later, if at all. I would say that that represents far less protection for the consumer than would be given in a comercial contract. That is the reason that CCA's ARE regulated.

 

Any document - which could be a fag packet in the example you've given - which conforms to the requirements of the CCA 1974 IS a credit agreement enforceable through the Court.

 

I think referring to contract law while discussing the application of a CCA agreement is irrelevant, as the CCA 1974 will override the common law of contract at all times and prevail if there are discrepancies. We're better off sticking to the terms of the Act, rather than stepping in to the realms of conjecture discussing possible outcomes outside of it, IMHO. What "is in the minds of the parties making the contract" is irrelevant - documentation definately beats conversation in these circumstances.

 

I agree about the terms being in the document. I'm not disagreeing with you, but I think your posts above could be misleading to the less CCA-educated viewers of this thread.

 

....On the payment issue, is there anything in contract law that says an agreement is binding/acknowledged because payments have been made....I understand 127(3) but just wondered if on a good day for a Barrister and the wrong Judge this could be argued in court and won..?

 

I'd refer you to my opinion, above, B3rty - contract law has no bearing on this agreement as it is CCA regulated. (Allegedly, at least!)

 

It could be argued that way, but that would be wrong and give grounds for an appeal. No Barrister worth his salt would risk that, IMO. (Some NOT worth their salt might, if advice hasn't been given from CAG!)

 

Anyhoo, from Dave's POC, he is saying that payments were made by mistake. (which is a legal term, not the dictionary definition of the word, which I won't go in to now).

[car2403]

If anyone is at all unclear on what the costs of the creditor defending such a claim is, I suggest you visit Paul Walton's thread here;

 

http://www.consumeractiongroup.co.uk/forum/general-debt/11427-walton-rbos-25.html#post1302366

Pay particular attention to post #492, in which other parties costs are outlined at £80-£135 per hour and have totalled over £1,700 already. Paul is applying to have a Judgment set aside (this is explained on thread) but this isn't a typical case hearing on the fast-track - a transfer to the Commercial Court could increase these fees exponentially. Not allowing for any appeal, which is almost guaranteed whatever the outcome.

 

I, like Paul, (pt2537) am not trying to talk anyone out of anything - in fact, I admire Dave's resolve here - but the decision to proceed needs to be informed. I know Dave has almost already decided to go ahead, so this is just info for any other CAG-er considering following him.

[car2403]

"Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)"

 

Dave, can you explain this part you have included please?

 

Where in Kpohraror does it say that unlawful rescission of contract prevents a court from enforcing an alleged debt?

 

Dave originally got this from me and I originally got it from tomterm8.

 

I think there should be a reference to Wilson -v- FCT somewhere in there, which is the way I'm playing it, after "prevent the Court enforcing any alleged debt".

 

Kpohraror is the authority for the counterclaim to the value of £1k in substantial damages, without having to show special damages.

[car2403]

Ah right, but we need to clarify this. If asked by a judge how this conclusion is reached, we can't just say 'I got it from a mate who got it from another mate'

 

I agree that some further reference to Wilson would be appropriate. There is a clear precedent for the £1,000 damages but if the amount owed is substantially more, and the creditor can still enforce it, then the £1,000 is of limited benefit.

 

No, I wouldn't say that neither.

 

I would say "the Creditor hasn't followed the prescribed process under the Act and Regulations and should lose the possibility of further enforcement under the agreement as a financial penalty, in line with the Woodchester and Wilson Judgments".

 

Might be just an opinion, but it has to be pursuasive argument at least. (If not binding!)

[car2403]

I'm thinking that if a default and then a termination notice is inaccurate and invalid, then we could argue that a further default notice (corrected) cannot be issued as the agreement is no longer in force. This is the creditors own fault as they have acted unlawfully.

 

If they cannot then follow the correct procedure, then they can't take the next step in issuing court proceedings.

 

Just thinking out loud really, is there any merit in this?

 

Yeah, IMHO at least, as that's what I was meaning, in that by issue of another Default Notice the creditor is looking to enforce the agreement again, which they should be prevented from doing.

 

I'm sure we can bang heads together and get something worded that convinces a Judge it's right - or at least gives no leeway for the creditor to argue against it.

[car2403]

MORE to the point.........

 

if after defaulting both of us.........is the default legal ??

 

I am not interested in the default per se,

 

I AM interested in if it is now an illegal default and termination of contract ??

 

rgds

dave

 

I'd say the Default Notice is inaccurate as it includes a debtor under the agreement that wasn't party to the original - this alone should make it unlawful. The regs clearly state that the debtor and creditor should be identified on the Notice - if they aren't, it can't be relied on for enforcement.

 

Now the question is, have they Terminated your agreement on the back of this Notice? If they did, it will add weight to your case as you've suffered more prejudice as a result. (Loss of benefit under the contract)

 

I've discussed issue (in general) with Peter Bard on the main CCA thread and he believes that they can simply issue another (corrected!) Notice - I don't think they can due to the Wilson -v- FCT (and the other Wilson cases) arguments that states they can't rely on the Act for enforcement once they've unlawfully rescinded the contract. (Which is what has happened, IMHO)

 

In short, a Notice that is inaccurate has to be unlawful, whether it includes charges or not, as they haven't followed the prescribed process for Default/Termination. Whether it is or not is a matter of fact though - it's arguable either way, it just depends on whether the Judge sides with you or not and how you put you case across.

 

I don't think there's any caselaw on this, so using pursuasive argument is your best bet.

[car2403]

1. Kasumu v Baba-Egbe (1956) AC 539, 551

Lord Radcliffe – When the governing statute enacts that no loan which fails to satisfy any of its requirements is to be enforceable it must be taken to mean what it says, that no court of law is to recognise the lender as having a right at law to get his money back.

 

 

There may be something in the above.

 

Paul

 

Do you have the judgment for this, Paul?

[car2403]

Hi Paul...

 

just had a look at this and it seems to mirror the judges sentiments in wilson v fct......ie that it was parliments intention to punish the creditor for failing in his duty to get his paperwork right. the punishment being that any money outstanding is lost to him.

 

rgds

 

Dave

 

All adds to the cause though, doesn't it?

 

It's probably quite easy to distinguish one claim from Wilson v FCT (yeah, right! But they will try!) but having a barrage of caselaw backing your claim up can't hurt.

 

Just several more pages to photocopy for your bundle, if you get that far!

[car2403]

'

DON'T forget the angle that mrs Dave has been "defamed" by being named in the default !!

 

A Default challenge will cost less than a defamation case.

[car2403]

Hi guys....

 

Just been rereading this thread from the very start.........zzzzzzzz

 

and I am amazed how much we have all learned from each other, and how far each of us has got on our journey to debt freedom.

 

some have posted a few times and seem to have fallen by the wayside, but the vast majority are still here continuing there own battles and more importantly helping each other.

 

I can remember paul...pt2537 when he first started here with his claim against littlewoods....look at him now, the guy is an absolute star, and deserves his place next to whatever god he believes in. RESPECT !!

 

Anyway I think the Merlot is now getting the better of me, so Ill shut up

 

rgds to all

 

pt2537

shane5408

ncf

odc

hellhasnofury

maybeline

tomterm8

car2403

Alphageek

most of you have been along for the ride from near the begining....

.

.

jeez theres just too many of you guys to mention

 

dont be upset if i havent mentioned you......just a thank you to a LOAD of people on here and the rest of CAG all doing good work

 

rgds

 

Dave

 

You old romantic, you!

 

[car2403]

Sorry butting in again. I have asked this question in the Data Protection Act forum, but not had an anwer.

 

Need some advise please,

Have an ongoing dispute with a company (about ten months).

They have sent me a template default notice (to show me what it would have looked like) stating they have no legal obligation to retain the original. Just marked the account with the date. I just need to know how to respond to this.

It is a little irrelevant as well, as the main issue is that they are trying to hold me to a pre-contractual application form, with some of the prescribed terms missing;) and therefore unenforcable

 

Any thoughts:-?

 

Having exactly the same issue with HFC, HHNF, except they are relying on a "true copy" (which is made up from the account) with LOTS of mistakes on it, (still relying on it, though!) and a copy of a template NOD that is used to create them;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default.html

[car2403]

The problem being that taking on the world, (as the title of the thread suggests) means that it sometimes feels that way and you're all alone! (I should know, call me "Mr Litigation" at the mo! I was thinking of applying for a parking space near my local Court - it would be blooming cheaper!)

 

Dave, if I could pay your Court fees, I'd happily do it! (In fact, I have a dodgy credit card with nothing on it - and no CCA to boot - if you fancy issuing through MCOL! ) (NOTE: I was going to suggest a small donation from everyone subscribed to your thread, but CAG Admin don't like that sort of thing, so I didn't bother)

 

Short of that, we're all here behind you, should you need us. It's not just "fee-free" legal advice, you know - we're the CAB/Legal Aid/The Samaritans... all rolled in to one!

 

So, chin up mate - get that down drink you (yes, that is a test to see if you are sober!) and get solidering on!

 

Even Dave can have a day off - just make sure it's not a Court hearing day!

 

Everyone else: "Where is the love for Dave?"

[car2403]

Barclays always take these things to the wire - even more reason to stick to your OWN timescales, IMHO;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110184-car2403-barclays-bank-default.html[url=http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110184-car2403-barclays-bank-default.html][/url]

 

Oh, and not forgetting;

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/93273-car2403-barclays-bank.html

[car2403]

Jane's thread is here, for replies to the above;

 

http://www.consumeractiongroup.co.uk/forum/formal-solutions/123723-bankruptcy-best-option-here.html

[car2403]

How are you getting on, Dave?