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PT, can you tell me, if part of an agreement executed as Unregulated, has actually got unregulated and regulated categories within it, does the fact that the agreement, having been improperly executed render the WHOLE agreement unenforceable or can the creditor ask the court to enforce the unregulated part?

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PT, can you tell me, if part of an agreement executed as Unregulated, has actually got unregulated and regulated categories within it, does the fact that the agreement, having been improperly executed render the WHOLE agreement unenforceable or can the creditor ask the court to enforce the unregulated part?

Hmm, that would depend upon a number of factors,

 

If we are purely saying there is nowt else wrong with the agreement save the un regulated / regulated argument, then the unregulated part would subject to complying with the basic principals of Contract Law ie offer, acceptance, consideration and intention to create legal relations , be enforceable against the individual, however the regulated part would not. so long as there could be a clear distinction between the parts, otherwise id say you could argue that if unreg and reg is blurred the it may change things, again it depends upon the situation, the agreement and matters relating to the agreement

 

It is very difficult to give a definitive answer

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I won't hog Dave's thread on this I've brought this up on the Multiple Agreement thread you began..http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within-24.html As BS said, the devils in the details with these agreements and it's the details I'm trying to thrash out for people..apart from filtering out the devils on my own ones..

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I won't hog Dave's thread on this I've brought this up on the Multiple Agreement thread you began..http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within-24.html As BS said, the devils in the details with these agreements and it's the details I'm trying to thrash out for people..apart from filtering out the devils on my own ones..

okie dokie, i will have a look, i must admit i have looked at that thread for a while so i will have a looksy now

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the reason Wilson achieved the result she did was that her pleaded case in the county court was based upon s106 CCA 1974 which means and provides that any security lodged under a improperly executed credit agreement

 

Yes I understand – but the result is the same as in my earlier example.

 

The act doesn’t detail the consequences of an unenforceable agreement other than stating that the court cannot enforce the agreement. It just so happens that the act specifically details the consequences of ineffective securities – it doesn’t mean you can’t put the argument forward – it’s just how you put the argument forward that matters.

 

I don’t think the act was designed to have no affect on the creditor if they opened credit accounts without adhering to the provisions laid down in the act – is the creditor to be limited to enforcement merely at the point at which the debtor secures unenforceability?

 

It then becomes a matter of at what point during the term of the agreement the debtor seeks unenforceability having a direct consequence to the degree of benefit the creditor receives – For example – if the debtor has a 10 year agreement and discovers the agreement to be unenforceable 5 years into the agreement but is prevented from recovering the 5 years worth of payments then the creditor has benefited in a way that they are not entitled to – and the closer the debtor gets to the end of the term the more benefit the creditor receives – the act might as well say if you are lucky enough to find out at the start of the agreement then great but if you find out at the end then tough – that doesn’t seem correct to me.

 

Its not an easy point to get across but the way I see it is unenforceability applies across the whole term of the agreement and not from the point in which unenforceability is declared. How that is argued in court is another matter – I guess not only do you have to seek a ruling on enforceability but also the consequences of that enforceability.

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you would never be able to recover the capital that you had repaid as that would arguably be unjust enrichment on your part,save for in the circumstances already mentioned

 

you could advance an argument of payment by mistake as advanced in Kiriri cotton co and Dewani (excuse the spelling if its wrong) and more recently the Klienwort benson case but you could only recover monies over and above of the capital

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So the creditor doesn’t lose all rights under the agreement – they lose all rights at the start and none at the end and some in the middle – that’s not a very even application of the law - my argument is that if the agreement was unenforceable at the end then it was unenforceable at the start – all repayments have been made under a mistaken obligation against an unenforceable agreement and the creditor is not entitled to receive any benefit under the agreement.

Until someone actually gets a ruling on it I think it remains very unclear – perhaps one should seek unenforceability first and then argue for reimbursement after obtaining the ruling. I guess most people are happy to get the debt discharged and leave it at that.

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So the creditor doesn’t lose all rights under the agreement – they lose all rights at the start and none at the end and some in the middle – that’s not a very even application of the law - my argument is that if the agreement was unenforceable at the end then it was unenforceable at the start – all repayments have been made under a mistaken obligation against an unenforceable agreement and the creditor is not entitled to receive any benefit under the agreement.

 

Until someone actually gets a ruling on it I think it remains very unclear – perhaps one should seek unenforceability first and then argue for reimbursement after obtaining the ruling. I guess most people are happy to get the debt discharged and leave it at that.

there have been many, but just not reported due to being at county court level, unless you subscribed to Encyclopedia of consumer credit law it is unlikely you will have access to these as this publication contains the Consumer Credit Law reports much like Goode Consumer Credit Reports.

 

The issue you will fall into is s170 which provides that

 

70. No further sanctions for breach of Act.

— (1) A breach of any requirement made (otherwise than by any court) by or under this Act shall incur no civil or criminal sanction as being such a breach, except to the extent (if any) expressly provided by or under this Act.

 

looking at the extensive commentary oin this, the only remdy would be available under common law, the mistake of fact/law arguments for restitution

 

now you fall into the unjust enrichment trap there as it would be unjust to recover monies which you were not entitled to, ie the monies you were given under the contract. you would have an arguable claim for recovery of monies over and above the capital but you would not succeed for total recovery

 

i have had a few claims which have recovered monies paid but that has been soley the interest payments

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good morn PT can you give some advice on this thread ,i am sure you can help to take apart the crap that has been written by barclays many thanks partickq1

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/128063-morgan-stanley-goldfish.html

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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Also, mistake of fact and mistake of law is a fairly extensive area of law on it's own - to mix that in with the Consumer Credit issues would probably blow a laypersons mind!

 

Don't get "mistake of fact" and "mistake of law" mixed up with "mistaken obligation", though, as that probably wouldn't make it a mistake of fact/law without further evidence;

 

Mistake of law - Wikipedia, the free encyclopedia

 

Mistake (criminal law) - Wikipedia, the free encyclopedia

 

As you'll see, mistake of fact is usually only applicable in criminal law and mistakenly (the lay meaning of the word) making payments under an unenforceable agreement won't, generally, amount to a mistake of law.

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Okay – thanks for that PT and Car – so because the act expressly states under s127(3) that the court shall not make an enforcement order, the agreement then becomes unenforceable.

So now it becomes a matter of what does the act impose on the creditor in the instance where an agreement cannot be enforced – and this is where it becomes unclear because there is no specific statement within the act relating to the consequences of unenforceability in general (other than ineffective securities)

So should that be the end of the matter – you could then interpret that an unenforceable agreement if not discovered until right at the end of the term is of no consequence and this cannot be correct. At the end of the term an unenforceable agreement has been enforced against the debtor by the creditor but not by the court. Put another way - that’s like saying a creditor can have total disregard for the provisions of the act and as long as the agreement is at an end or near the end there is very little to be done about it.

This is where I can’t get my head around it – because it would seem that at the end or near the end of an unenforceable agreement term the creditor gains everything all but perhaps one instalment but at the start, before the first payment is made, he loses the right to recover any of the capital – I must admit that I am struggling to put up a definitive argument but it doesn’t seem right to me. The argument to reclaim the interest on the basis that it shouldn’t have been charged isn’t written into the act either so how is this possible?

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Those claiming it are using the cases of restitution to reclaim what was paid under the agreement.

 

Also, an unenforceable agreement is only unenforceable against the debtor - the debtor can continue under the agreement to receive the benefit of it and the creditor can continue to receive the bargain to be had from it, in theory. Most unenforceable agreements are withdrawn, say by removal of credit tokens/credit limits, etc, and the debts are written off. Should you continue to make payments under an unenforceable debt, the creditor probably won't turn them away. (You'd still be able to attempt a restitution claim, though!)

Always happy to help where I can!

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Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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After the last few posts I am looking at things slightly differently.

Once the agreement is declared unenforceable then any balance allegedly owed against the creditor is unenforceable – the debtor has been enriched but not unjustly because parliament wouldn’t have intended unjust enrichment via the Consumer Credit Act – so creditor is left without a way of recovering the remaining debt.

Reclaiming all payments against the account is not what parliament intended (other than in specific circumstances such as Wilson v fct) so that would be classed as unjust enrichment – so more favourable for the debtor if unenforceability is declared at the beginning of the agreement or if there is a large outstanding debt and more favourable for the creditor if there is a small outstanding debt or it is at the end of the agreement.

However, once the agreement has been declared unenforceable there is an argument that the creditor has been unjustly enriched because they have charged interest to a principal sum that they are not entitled to charge – the debtor has made payments under a mistake of fact and a mistake of law (is that correct?) so all interest applied to the account can be claimed back up to, but not exceeding the value of payments made by the debtor against the account. And it just becomes a case of working that out.

So you could be in a position where you have a credit card with a balance of £5000.00 and the balance cannot be enforced against the debtor – Over the lifetime of the account the creditor has applied £3000.00 in interest charges and the debtor has made £5000.00 in monthly repayments – so now the debtor can claim restitution of £3000.00

Sorry for hijacking the thread Dave!

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After the last few posts I am looking at things slightly differently.

Sorry for hijacking the thread Dave!

 

A lot of what you are arguing here is an extension of the multiple agreement unenforceability atwozee over on http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within-24.html, this is all coming together under one roof and is fantastic to be argued out for people...keep it up..

Cabot and the Cabot Fan Club Threads:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/73598-dealing-cabot-101-cabot.html

 

Legal Actions Explained for Businesses:

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20492-legal-actions-explained-company.html

 

Payplan CCCS Advice:

http://consumeractiongroup.co.uk/forum/getting-out-debt/128587-info-cccs-payplan-experiences.html?highlight=Payplan

 

How to use the Forum

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

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Do not regard my postings or suggestions as professional advice. If in doubt seek a professional opinion.

 

PLEASE DONATE IF SUCCESSFUL - Every little helps :)

 

PLEASE, Do not Private Message me with basic questions, start your own thread and PM a link if you wish, but I will not be able to respond to all individual questions as I am very busy on numerous other things and anyway, others cannot learn from PM's. It also stifles contributions from the vast talent base this site offers from it's contributors and I'm not all that clever really! :D Thank you.

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So you could be in a position where you have a credit card with a balance of £5000.00 and the balance cannot be enforced against the debtor – Over the lifetime of the account the creditor has applied £3000.00 in interest charges and the debtor has made £5000.00 in monthly repayments – so now the debtor can claim restitution of £3000.00

 

Sorry for hijacking the thread Dave!

 

Hi atwozee, so you are suggesting restitution of the amount paid, but no repayment of the amount borrowed, classing it as a gift.

 

This has got to be the way forward. I have often wondered if when action by the lender is stopped just before court hearing and the debt written off as I have seen in a few cases on here, maybe this was in the back of their mind. I mean its better for them just to walk away knowing they are probably still in profit than risk a judgement whereby they have to repay everything that has ever been paid, and of course setting a precedent.

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Hi atwozee, so you are suggesting restitution of the amount paid, but no repayment of the amount borrowed, classing it as a gift.

 

Not quite – restitution of the amount wrongly charged in interest by the creditor – that’s how I see it.

The balance on an unenforceable agreement cannot be recovered by the creditor – from then on in it gets more complicated. I think the unenforceability of an agreement is important first and foremost. Once you have that ruling you can apply the Kleinwort Benson case to a claim for restitution against interest levied on the account.

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Not quite – restitution of the amount wrongly charged in interest by the creditor – that’s how I see it.

 

The balance on an unenforceable agreement cannot be recovered by the creditor – from then on in it gets more complicated. I think the unenforceability of an agreement is important first and foremost. Once you have that ruling you can apply the Kleinwort Benson case to a claim for restitution against interest levied on the account.

 

Ok, thanks for that, interest plus charges presumably.

 

Of course in the case of MBNA the repayments are only £5 more than the interest so you would get back almost everything you had paid. :D

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Of course in the case of MBNA the repayments are only £5 more than the interest so you would get back almost everything you had paid. :D

 

Well they do like high interest rates don't they.;)

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A lot of what you are arguing here is an extension of the multiple agreement unenforceability atwozee over on http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within-24.html, this is all coming together under one roof and is fantastic to be argued out for people...keep it up..

 

Er... That's "discussing", and not "arguing"...

 

:p;)

Always happy to help where I can!

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Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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After the last few posts I am looking at things slightly differently.

Once the agreement is declared unenforceable then any balance allegedly owed against the creditor is unenforceable – the debtor has been enriched but not unjustly because parliament wouldn’t have intended unjust enrichment via the Consumer Credit Act – so creditor is left without a way of recovering the remaining debt.

Reclaiming all payments against the account is not what parliament intended (other than in specific circumstances such as Wilson v fct) so that would be classed as unjust enrichment – so more favourable for the debtor if unenforceability is declared at the beginning of the agreement or if there is a large outstanding debt and more favourable for the creditor if there is a small outstanding debt or it is at the end of the agreement.

However, once the agreement has been declared unenforceable there is an argument that the creditor has been unjustly enriched because they have charged interest to a principal sum that they are not entitled to charge – the debtor has made payments under a mistake of fact and a mistake of law (is that correct?) so all interest applied to the account can be claimed back up to, but not exceeding the value of payments made by the debtor against the account. And it just becomes a case of working that out.

So you could be in a position where you have a credit card with a balance of £5000.00 and the balance cannot be enforced against the debtor – Over the lifetime of the account the creditor has applied £3000.00 in interest charges and the debtor has made £5000.00 in monthly repayments – so now the debtor can claim restitution of £3000.00

Sorry for hijacking the thread Dave!

 

Not a problem....but if you had read this thread you would have found out that this is exactly what I am trying to achieve.

 

Draft POC on post #527 I think......needs updating and a little work

 

rgds

 

Dave.

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see you stand like greyhounds in the slips,

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Just reinforcing your point – just got to get a judge to agree now:)

 

Cheers buddy..........Shortly :).................... (i hope)

 

Dave

** We would not seek a battle as we are, yet as we are, we say we will not shun it. (Henry V) **

 

see you stand like greyhounds in the slips,

Straining upon the start. The game's afoot:

Follow your spirit; and, upon this charge

Cry 'God for Harry! England and Saint George!'

:D If you think I have helped, informed, or amused you do the clickey scaley thing !! :D

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Atwozee you referred to the Wilson case and return of all payments made.

 

If someone was wanting to be returned payments made under mistake when either an agreement is improperly executed and/or there is no agreement on file in most cases people would have to do a SAR request to then determine amounts paid and (add the 8% interest over period since payment was made - was advised could do this)

 

SAR requests tend to give max 6 years statements so I think it would be those payments only and not all payments wouldnt it?

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I guess you would have to estimate the amount and issue a claim/counter claim against the creditor but ask the court to order the creditor to supply the required information under CPR 18 – I’m not sure really – depends on whether you are taking action or they are taking action against you. Have you started a thread or are you going to?

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Hi atwozee

 

The post is here http://www.consumeractiongroup.co.uk/forum/general-debt-issues/172921-confusing-catalogue-response-any.html

 

Been having discussions with Davey77 and he suggested a template letter (LBA) and to ask for 6 years after doing a SAR. And to get opinions on the ALL payments issue.

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