Do the Courts overlook the 42 day deadline?

[risibilis]

I was told today, by a CAB advisor, that the Courts tend to enforce credit agreements whenever they are presented by a creditor.

They take the view that the agreement legally confirms the money is owed and that it should be paid back, even though they may take a dim view of a 'late appearance' of the agreement hard copy.

The exception, of course, is the 6 year (5 years in Scotland) statute barred ruling.

Any opinions?

(I bet there are!)

[diskmandave]

Any opinions?

(I bet there are!)

 

The banks & financial industry should wipe the slate clean across the whole country and start again from scratch.

 

That do??!

[risibilis]

The banks & financial industry should wipe the slate clean across the whole country and start again from scratch.

 

That do??!

That'll do nicely!

(with a nod to American Express)

[Phonesurgeon]

Wish was that simple...

[alibobsy]

My understanding is once a creditor is in default of a CCA request the debt becomes unenforceable, but does not dissappear. The should not add any charges or interest during the period of default, but can at any time reopen things as it were by producing the original agreement down the line. That is why many people on here once in the default period push for final closure of the account, sometimes by offering a f&f settlement, sometimes with threats to complain/actual complaints to the relavant authorities.

ali x

[dannyboy660]

I was told today, by a CAB advisor, that the Courts tend to enforce credit agreements whenever they are presented by a creditor.

 

I think the key point there is the word 'Creditor'.

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/90701-creditor-unable-supply-cca.html

 

I can't remember all the detail, but it was something to do with CCA'06 as opposed to CCA'74

 

A creditor can "cuff you and stuff you" at any time within the six years. A DCA/Purchaser can't...if I remember rightly.

 

I read so many of these things I tie myself in knots sometimes, but the closure mentioned by ali is a very good point indeed to stop things coming back to bite you.

 

Three loud cheers for Consumer law...hip, hip....

[Curlyben]

Interesting observation there dannyboy, but not completely correct.

Section 127/8 of CCA74 IS still in effect and hasn't been superseded by CCA06.

It is still a full defence, but you have to make sure that your bundle covers this area well to ensure NO doubt.

 

127.—(1) In the case of an application for an enforcement order under—

(a) section 65(1) (improperly executed agreements), or

(b) section 105(7)(a) or (b) (improperly executed security instruments), or

© section 111(2) (failure to serve copy of notice on surety), or

(d) section 124(1) or (2) (taking of negotiable instrument in contravention

of section 123),

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only

if, it considers it just to do so having regard to—

(i) prejudice caused to any person by the contravention in question, and

the degree of culpability for it; and

(ii) the powers conferred on the court by subsection (2) and sections 135

and 136.

(2) If it appears to the court just to do so, it may in an enforcement order reduce or

discharge any sum payable by the debtor or hirer, or any surety, so as to compensate

him for prejudice suffered as a result of the contravention in question.

(3) The court shall not make an enforcement order under section 65(1) if section

61(1)(a) (signing of agreements) was not complied with unless a document (whether

or not in the prescribed form and complying with regulations under section 60(1))

itself containing all the prescribed terms of the agreement was signed by the debtor or

hirer (whether or not in the prescribed manner).

(4) The court shall not make an enforcement order under section 65(1) in the case of a

cancellable agreement if—

68

(a) a provision of section 62 or 63 was not complied with, and the creditor or

owner did not give a copy of the executed agreement, and of any other document

referred to in it, to the debtor or hirer before the commencement of the proceedings

in which the order is sought. or

(b) section 64(1) was not complied with.

(5) Where an enforcement order is made in a case to which subsection (3) applies, the

order may direct that the regulated agreement is to have effect as if it did not include a

term omitted from the document signed by the debtor or hirer.

128. The court shall make an order under section 86(2) if, but only if. the creditor or

owner proves that he has been unable to satisfy himself that the present and future

obligations of the debtor or hirer under the agreement are likely to be discharged.

[MARTIN3030]

I dont think we can generalise as to what position the Courts take.

Cases are usually dealt with on their own merits.

If you have filed a claim or are looking for an order to be made then the Court naturally look at the submissions from you and progress the case according to the protocols.

If the other side are in breach then its up to you to put your case over.

The CAB whilst I am not knocking them,are not really up to speed on these sorts of cases since I suspect it accounts for a very tiny percentage of their workload.

I would even say that there are many people within these forums that are more clued up on the inns and outs of this sort of enquiry than many CAB volunteers.

[rory32]

I would completely agree with Martin, while the CAB are well meaning in their advice they are not knowledgeable of this area of the law.

 

Also remember often neither are judges and judges can only make discission based on the evidence presented. This means if a credit agreement is not enforceable you have to point out why, quoting the relevant statute.

[risibilis]

I would completely agree with Martin, while the CAB are well meaning in their advice they are not knowledgeable of this area of the law.

 

Also remember often neither are judges and judges can only make discission based on the evidence presented. This means if a credit agreement is not enforceable you have to point out why, quoting the relevant statute.

 

But this is a frightening supposition, isn't it? That a judge could be ignorant of such a decisive and emphatic piece of legislation as the 1974 CCA.

 

I've been around long enough (and involved in a civil court action too) to be aware that, in civil law, the largest wallet wins - but I have/had a belief that the judges had, at least, a full grasp of the legalities concerning the trial they were overseeing. I suppose I'm being naive.

 

Yes, I know the CAB are often better armoured with good intentions than they are with law knowledge, but the CAB advisor who told me this deals with debt issues all the time (You can probably guess which Scottish city he works in!) and he seemed au fait with the situation. When I see him again I'll ask to see the piece of legislation he's quoting to me.

 

Point I'm trying to clarify, in raising this issue originally, is that I get the impression from reading lots of posts, that people may be automatically assuming that a credit agreement surfacing after the 42 days period is absolutely unenforceable in law.

[rory32]

I've been around long enough (and involved in a civil court action too) to be aware that, in civil law, the largest wallet wins

We'll have to disagree on that point.

 

that people may be automatically assuming that a credit agreement surfacing after the 42 days period is absolutely unenforceable in law.

Possibly some people are assuming that. They certainly shouldn't. Once the agreement is produced the debt is enforceable again (if the agreement has the prescribed terms, etc.).

[risibilis]

Once the agreement is produced the debt is enforceable again (if the agreement has the prescribed terms, etc.).

 

Which begs the question - what's the point of the 42 day criminal offence legislature?

 

Is it that brandishing a credit agreement after the 42 days is a criminal offence for which the judge can/must enforce a suitable penalty - but the credit agreement is (potentially) enforceable?

 

I hope I'm not seeming to be pedantic over this issue - I just feel the CCA74 is such a critical piece of legislation and could be optimistically interpreted by a debtor - at a risk of misinterpretaion.

[rory32]

If they have committed a summary criminal offence then any fine, etc. would be decided in a criminal court. The action you would be defending would be in a civil court.

[MARTIN3030]

Yes Rory thats correct.

My earlier post mentioned the lack of experience or certainly lack of knowledge by the CAB to confidently advise in these areas.

Similarly this is new territory for many Judges too.

The difference here tho being that most Judges are very good at their Job and if they are unsure they have this will to want to know.....I suppose thats why they were attracted to the Job .... its part of their calibre.

At the end of the day though its swings and roundabouts.

If you point out that there have been breaches of statute law then they have the discretion to either favour you....or the other side.

Rather like the banks

Its no secret that a few Judges have allowed the filing of N1 acknowledgements and defence submissions to run over their 14 days.......For the most part they have done this knowing that the system is at breaking point.

The Judges also know that where a claimant has filed for Judgement due to the banks late filing......they then apply for a set aside and on it goes........

There is a method in the madness amongst all this.

[dannyboy660]

Interesting observation there dannyboy, but not completely correct.

 

 

That's my reckless and over optimistic 'up and at 'em' cavalry charge approach, CB.

 

I'm sure it will get me in trouble one day, and I'm glad there are people here to reign me in and apply the brakes from time to time .